TMI Blog2010 (9) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... me. Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised u/s 139 of N.I. Act. If mere statement u/s 313 Cr. P.C. or u/s 281 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption u/s 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Section 138 of N.I. Act against the respondent after service of a Notice of Demand as the respondent failed to pay the amount despite notice of demand. Notice under Section 251 Cr. P.C. was served upon the respondent, the respondent took no specific defence and only pleaded not guilty. The appellant by way of an affidavit led his own evidence testifying that cheques were issued to him after he had advanced loan of ₹ 2.25 lakh to the respondent. The dishonour memo of the cheques was proved by the bank official. No defence evidence was produced by the accused. 3. The appellant had taken a stand that no reply to the notice of legal demand was sent by the respondent, instead, envelopes with blank sheets in it were sent by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the electronic form A bare definition of cheque shows that cheque is a Bill of Exchange drawn on specified banker and is an order by drawer on his own agent i.e. bank for payment of certain sum of money to the bearer or the order to person in whose favour cheque is drawn. This order of payment by person to the holder of cheque is not made in casual manner just for the sake of fun. This order is made for consideration and that is why Section 139 of the N.I. Act provides that the holder of a cheque is presumed to have received the cheque in discharge of whole or in part of a debt or liability. It was sufficient for complainant to prove the debt and liability by making a statement that the cheques were issued by the respondent for paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relied upon by the Trial Court. In this judgment itself Hon'ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under Section 139 of N.I. Act would largely depend upon the factual matrix of each case. The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under Section 138 of N.I. Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the cheques were issued as secur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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