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TMI Blog2013 (1) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... uments Act (for short "the N.I. Act") against the respondent No.1 herein. According to the complainant, he retired as Superintendent of Central Excise and after retirement he received Rs.3,00,000/- towards retirement benefits. The accused was working as teacher in Government Aided Andhra Balika High School and she is a colleague of the complainant's wife. The accused approached the complainant through his wife and obtained a hand loan of Rs.1,90,000/- for settlement of the debts of the son of the accused, which he incurred in the Frontier Computers Software Technology with a promise to repay the same within six months but in spite of several demands, the accused began dodging and it was very difficult to locate the accused at her residenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant. 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 accused marked Exs.D-1 and D-2 on his behalf. The Magistrate by taking into consideration said oral and documentary evidence and by relying upon various decisions of the Apex Court and this Court, held that the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thamdas Pantani and another [1997(1) ALD (Crl.) 794 (AP)] and G.B.Lingam v. Vitta Murali Krishna Murthy [1998(1) ALD (Crl.) 940 (AP)], held that the initial burden is on the accused to prove the said cheque, which was issued in discharge of legally enforceable debt and then the burden shifts on the accused to disprove the same and as the complainant failed to discharge the initial burden, come to the conclusion that the complainant has failed to prove that the said cheque was issued for the legally enforceable debt. In P.Venugopal v. Madan P.Sarathi1, the Apex Court held that "the facts and circumstances of a debt or other liability has to be proved in the first instance by the complainant and in discharge of the said debt or liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any debt or liability. The burden was on the accused to rebut the aforesaid presumption." In K.N.Beena v. Muniyappan3, the Apex Court held that "in view of the provisions contained in Sections 118 and 139, the Court has to presume that the cheque had been issued for discharging a debt or liability. However, the said presumption could be rebutted by the accused by proving the contrary. Mere denial or rebuttal by accused in the reply to the legal notice sent by the complainant is not enough. The accused had to prove by cogent evidence that there was no debt or liability." In M.S.Narayana Menon v. State of Kerala4, the Apex Court held that "the initial burden of proof is on accused to rebut the said presumptions by raising a probable defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trial Court has rightly disbelieved that version as 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 between the accused and her daughter as per paper publication made in Vaartha newspaper. According to PW.3 P.Dharma Reddy, he has gone to the house of the accused along with the complainant and in his presence the accused has issued the said cheque to the complainant but he could not state about the location of the house or identity of the house of the accused. The accused has got marked Ex.D-2 a letter written by her to the bank requesting stop payment of the disputed cheque stating that she has issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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