TMI Blog2018 (6) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... no hesitation to hold that the subject cheque was issued by the accused/Respondent for the legally enforceable debt and the accused has not rebutted the presumption available to the complaint under Section 139 of Negotiable Instruments Act. The finding of the Learned Magistrate that complainant has not produced proper accounts to prove the existing liability as on 2004 is immaterial. The learned Magistrate ought to have seen that whether the subject cheque in question was issued by the accused, if so, the same was issued for the legally enforceable debt - the accused has admitted the issuance of cheque and the same was also held to be issued for the legally enforceable debt. Appeal allowed - decided in favor of appellant. - Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, the respondent/accused duly admitted the execution of cheque and further he has not chosen to send any reply to the statutory notice issued by him, and therefore the Learned Magistrate ought to have held that the appellant as the holder in due course of the cheque has proved the offence and it is for the respondent to prove the contra in the above complaint. 5.The learned counsel for the appellant would submit that the Learned Magistrate come to the conclusion that Ex-P1 cheque was presented for collection within the validity period and the same was not honoured due to insufficiency of funds and the statutory notice also was duly served as per Ex.P4 and Ex-P5 and that all Exs.-P1 to P5 are admitted by the accused. Such being t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to P5. 8.Per contra, the learned counsel for the respondent would submit that he defended the complaint inter alia contenting that he borrowed ₹ 2,50,000/- on 23.08.1994, ₹ 2 Lakhs on 29.08.1994 and ₹ 4,50,000/- on 01.10.1995 from the complainant s father who was running a finance company in the name and style of Chokkananachiamman Bankers. Accused was paying the interest regularly. On 11.07.2010, the complainant s father died. Thereafter, a Panchayat was held in the house of one Ravi (D.W.4) at Perundurai. As per the Panchayat, the respondent/accused paid ₹ 9 Lakhs and interest of ₹ 1,50,000/- was agreed to be paid by way of cheque dated 13.04.2004 issued for ₹ 1,50,000/-. The said cheque was presente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 9 lakhs and issued cheque for ₹ 1,50,000/- by the accused in the presence of Panchayatars, definitely would have got some written acknowledgement for the reply given by the complainant regarding misplace of previous cheque and pronote given to the father of the complainant. That apart, if the above version of the accused is genuine, he would have given reply to the legal notice sent by the appellant herein. The non-issuance of reply to the legal notice is also a ground to fix the liability on the accused. 12.Further, this Court is not able to accept the above contention of the accused, since he has not examined any one of the Panchayatar to prove the above said alleged Panchayat took place. In view of the discussion made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts to prove the existing liability as on 2004 is immaterial. The learned Magistrate ought to have seen that whether the subject cheque in question was issued by the accused, if so, the same was issued for the legally enforceable debt. As discussed above, the accused has admitted the issuance of cheque and the same was also held to be issued for the legally enforceable debt. 15.In the result, this Criminal Appeal is allowed and the judgment and order of acquittal dated 21.02.2007 made in C.C.No.213 of 2004 passed by the learned District Munsiff-cum-Judicial Magistrate, Kodumudi, is hereby set aside. The accused should undergo six months Simple Imprisonment and was also directed to pay the cheque amount by way of compensation, in def ..... X X X X Extracts X X X X X X X X Extracts X X X X
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