TMI Blog2016 (9) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) that the cheque so issued had been returned due to insufficiency of funds. The proviso appended to the said Section provides for compliance of legal requirements before a complaint can be acted upon by the Court of law. Section 138 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. Rather, it merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or liability. Thus, ingredients of Section 138 of the Act have duly been met, as the accused was unable to rebut the statutory presumption under Section 139 of the Act. Even otherwise, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for short, the Act ) and has sentenced him to undergo rigorous imprisonment for a period of one year and to pay costs of ₹ 2,000/-. Briefly stated, respondent-Kuljinder Singh filed a complaint against the petitioner under Section 138 of the Act and Section 420 IPC, with the allegations that the petitioner has borrowed a sum of ₹ 2,30,000/- from the respondent-complainant in the month of March, 2012 for his personal need. The petitioner had agreed to pay back the said amount within one month and in order to discharge his legal liability, he had issued a postdated cheque, in favour of the respondent i.e. cheque No.722279 dated 17.4.2012 drawn on ICICI Bank Branch, Phagwara. The petitioner assured the respondent that in case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranch Phagwara in favour of the complainant in discharge of his legal liability or not? 2. Whether said cheque on presentation returned back dishonoured with the remarks Account closed and despite the issuance of legal notice accused failed to make the payment of the cheque amount within statutory period or not? The petitioner referred to the cross-examination of CW-1 Kuljinder Singh (complainant) who had stated that at the time of handing over the cheque, Santokh Singh and Amarjit Singh were present, but the complainant had not examined these witnesses so as to corroborate the allegations made in the complaint. It was pointed out that the fact as to when the loan in question was taken by the petitioner has not been mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 18.4.2016. 14. In this way he admitted regarding issuance of the cheque Ex.C2, which ultimately dishonoured with remarks Account Closed . Hence, the trial court rightly hold that appellant/accused Amarjit Singh committed the offence punishable under Section 138 of the Act Learned counsel for the petitioner has argued that though Section 139 of the Act merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of debt or liability, however, the said presumption does not relate to existence of legally enforceable debt or liability and therefore, before drawing a presumption under Section 138 of the Act, it is the duty of the Court to see whether or not the complainant has d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 138 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. Rather, it merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or liability. Thus, ingredients of Section 138 of the Act have duly been met, as the accused was unable to rebut the statutory presumption under Section 139 of the Act. Even otherwise, the petitioner has himself suffered a statement before the lower Appellate Court that a compromise has been effected between the petitioner, according to which, the petitioner agreed to make payment of ₹ 1,30,000/- on that date itself ..... X X X X Extracts X X X X X X X X Extracts X X X X
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