TMI Blog2015 (4) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... he Negotiable Instruments Act starts operating and burden shifts to the accused? Held that:- In the present case since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant is that he is the owner of the Ullas Theatre situated at Yashwantpur, Bangalore, while the defendant is the distributor of films. The two parties had a business relationship whereunder the defendant provided movies to the complainant for screening at his Theatre. In May 2006, the defendant sought a loan of Rupees Five Lakhs from the complainant for supporting the making of a Tamil movie Pokari . The said loan was advanced by the complainant on 20-05-2006. The defendant had promised to repay the loan on release of the said movie. However, the defendant failed to repay the said loan. On repeated requests made by the complainant, the defendant on 16-01-2007, gave a cheque for ₹ 5 lakhs, bearing No.822408, drawn on State Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged cheque was given to the complainant in the year 1999 as security against loan of ₹ 5 lakhs taken then. After the defendant paid the loan, the complainant did not return the said cheque saying that he had misplaced it. The defendant alleges that the complainant, due to ill will in release of the movie Pokari , used this old cheque to take revenge against the defendant firm. The Trial Court found the defendant guilty under Section 138 of Negotiable Instruments Act and sentenced her to pay a fine of ₹ 5, 55, 000/-, in default of payment, she was to undergo simple imprisonment for five months. The first appellate Court found that although the defendant disputed the transaction, they did not dispute the cheque or her signatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pokari in his theatre. Further, the High Court noted that the complainant in his statement has deposed that he had withdrawn the amount of ₹ 5 lakhs, 2 days prior to giving it to the defendant but he failed to bring on record any receipt or other proof of such withdrawal of money from bank. The High Court found the case of the complainant lacking to prove the offence under Section 138 of the Negotiable Instruments Act. We have heard the learned counsel appearing for the appellant as also the learned counsel appearing for the respondent. The complainant has alleged that the money (loan) was advanced to the defendant on 20-05-2006 in relation to which the cheque was issued to him by the defendant on 16-01- 2007. The cheque was for & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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