TMI Blog2013 (1) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ary evidence or he can also rely upon the evidence produced by the complainant and the material available on record without examining himself. The burden can be discharged by the accused on the basis of preponderance of possibilities. Applicant further deposed that the accused has executed a bond on her own hand writing after receiving the said amount and in the cross- examination he has deposed that the said bond was returned by the complainant one week or ten days prior to the issuing Ex.P-1 cheque. No prudent man would return the bond executed by the borrower without obtaining the cheque in lieu of said bond and more particularly when there is a dispute with regard to the property The accused was working as a teacher as on that date and if really she has issued a cheque for Rs.1,90,000/- she would have written the blanks in the said cheque with her own hand writing. Thus, the complainant has scribed the same in his hand- writing supports the contention of the accused that she issued two blank cheques in favour of Ushodaya Finance Company. The above circumstances create a doubt with regard to lending of the money by PW.1 to the accused and the accused issued the cheque in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-1338, situated at Shivanagar, Warangal conveyed in the name of her unmarried daughter and subsequently the complainant came to know that a lawyer's notice was appeared in Vaartha newspaper on 12.10.1998 with regard to transfer of said property in the name of her daughter. Immediately on 25.11.1998 a lawyer notice was sent to an advocate Chamanti Prabhakar Rao, which was served on him on 25.11.1998. Along with the said notice, a copy of the lawyer's notice dt.25.11.1998 addressed to the accused was sent to the said advocate with a request to inform the same to the accused. Thereafter the accused got issued a reply notice on 09.12.1998 to the counsel of the complainant. Hence, the accused has committed the offence punishable under Section 138 of the N.I. Act. The accused denied the allegations when she was examined under Section 251 of Cr.P.C. During the course of trial, the complainant himself examined as PW.1 and examined the Deputy Manager of SBH, Warangal Main Branch as PW.2 and one P.Dharma Reddy as PW.3 and got marked Exs.P-1 to P-7 on his behalf. No oral evidence was adduced on behalf of the accused. During the course of examination under Section 313 of Cr.P.C., the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the complainant and in discharge of the said debt or liability the accused issued the cheuqes and the burden shifts on the accused and in the said case as the appellant could not discharge the burden, the appeal was dismissed." In the present case, the complainant examined himself as PW.1 and stated that the accused borrowed the amount of Rs.1,90,000/- from him, on demand she has issued the cheque Ex.P-1 for discharging of the said debt. PW.3 also stated that the accused issued the cheque in favour of the complainant. From the evidence of PW.2, it is evident that the said cheque was dishonoured when presented by the complainant for collection. Thus, prima facie the complainant could establish that the said cheque was issued in discharge of legally enforceable debt and the presumption under Section 139 of N.I. Act is available to the complainant. Now the burden shifts on the accused to disprove the same. The complainant's counsel contends that the accused could rebut the said presumption either by examining himself or producing any evidence on his behalf and thus, the lower Court erred in acquitting the accused. In K.Bhaskaran v. Sankaran Vaidhyan Balan2, the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." In view of the above said decisions, the presumption, which is available under Section 139 of the N.I. Act can be rebutted by producing necessary evidence or he can also rely upon the evidence produced by the complainant and the material available on record without examining himself. The burden can be discharged by the accused on the basis of preponderance of possibilities. In the present case, the accused has not disputed her signature on Ex.P-1, the cheque. But according to her, the blank cheque was issued in favour of Ushodaya Finance Company in which complainant's son is a partner and the complainant misused the same for filing the complaint and she further pleaded that she has not borrowed any amount from the complainant and he has no capacity to lend the amount. PW.1 in the beginning of the chief examination has stated that the accused borrowed the amount on 26.10.1998 and subs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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