TMI Blog2017 (6) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused to the brother of the complainant was for a specific amount, there is no reason why he should have handed over a blank cheque as is claimed. The guilt of the respondent (accused) for offence under Section 138 of Negotiable Instruments Act stands brought home by the evidence adduced by the trial court before the court of the Metropolitan Magistrate. Appeal allowed. The second respondent (Ram Prakash Yadav) is held guilty and convicted for offence under Section 138 Negotiable Instruments Act, 1881. - Crl. A. 128/2017 - - - Dated:- 31-5-2017 - MR. R.K. GAUBA J. APPELLANT Through: Mr. Yogesh Chhabra, Advocate RESPONDENTS Through: Mr. Akshai Malik, APP for R-1/State Mohd. Azharuddin, Advocate for R-2 MR. R.K. GAUBA J. ORDER 1. The second respondent (Ram Prakash Yadav) was summoned by the Metropolitan Magistrate on the complaint (CC No.6621/1/12) of the petitioner herein as presented on 11.12.2012, and put on trial for offence under Section 138 Negotiable Instruments Act, 1881 by notice of accusations under Section 251 of the Code of Criminal Procedure, 1973 (Cr. PC), issued and served on 12.08.2013. On conclusion of the trial, by judgment dated 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith his brother Bittoo. I do not owe legally recoverable debt to the amount of ₹ 6,00,000/- as alleged by the complainant. The cheque in question was given for security purpose by me to Bittoo. 6. This is the plea which was reiterated by the respondent in the statement under Section 281 Cr. PC recorded on 26.08.2014. The respondent examined himself in his defence appearing in the witness box (as DW-1) also stating the same very facts during cross examination, he admitting that the cheque bears his signatures and denying the case of the complainant put to him. 7. The Metropolitan Magistrate, by the impugned judgment, found the accused had succeeded in rebutting the presumption arising out of the cheque. He was of the view that the story of advancing the friendly loan sounded hollow, it being highly improbable that the complainant would advance loan of such a huge amount to a stranger (the complainant), not disclosing the source from which the money had been arranged, also taking into account similar loan statedly extended by his wife again to the same person, and taking note of the fact that the Income Tax Return (ITR) for the corresponding period had not been placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kusum Ignots Alloys Ltd. v. Pennar Peterson Securities Ltd. (2000) 2 SCC 745 explained the ingredients of the offence under Section 138 of the Negotiable Instruments as under:- (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days (now 30 days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising i.e. failure of the drawer to make the payment of the money to the payee within fifteen days upon receipt of the notice of demand, though such period of one month for filing of complaint may be enlarged upon the court being satisfied about the sufficiency of cause for the delay. 14. In another similarly placed matter, it being Crl. A. 98/2017, Sanjay Arora Vs. Monika Singh , also being decided by a separate judgment today, this court, after tracing the law on the subject of presumption, as per rulings in Bharat Barrel Drum Mfg. Co. v. Amin Chand Payrelal (1999) 3 SCC 35, M.M.T.C. Ltd. vs. Medchl Chemicals Pharma (P) Ltd. (2002) 1 SCC 234, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16, Malllavarappu Kasivisweswara Rao v. Thadikonda Ramulu Firm (2008) 7 SCC 655 and Rangappa vs. Sri Mohan (2010) 11 SCC 441 has held as under :- 21. It is clear from the above overview that once the execution of the cheque is admitted, the complainant having been proved to be the payee of the cheque, or its holder in due course, statutory presumptions under Sections 118 and 139 of Negotiable Instruments Act arise to the effect that such cheque was drawn or indorsed, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her of the complainant. In the defence set up, it was essential for the accused to prove the fact that the cheque in question had been given to his brother rather than to the complainant in which regard the requisite proof is amiss. If the liability of the accused to the brother of the complainant was for a specific amount, there is no reason why he should have handed over a blank cheque as is claimed. 17. Even if the theory of blank cheque were to be accepted for the sake of consideration, the burden is on the accused to justify it by cogent reasons. There is no law that a person drawing the cheque must necessarily fill it up in his own hand writing. Once the signatures on the cheque are admitted, the liability arising therefrom cannot be evaded on the specious plea that the contents were not filled up by the drawer of the cheque. When a blank cheque is signed and handed over, it only implies that the person signing it, and handing it over, has given implied authority to the holder of the cheque to fill up the blank portions, it being a matter of legitimate presumption that he would understand the consequences of doing so. Undoubtedly, it is inherent in handing over of a blank ..... X X X X Extracts X X X X X X X X Extracts X X X X
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