TMI Blog2018 (9) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... im. Thus, the above material is suffice to conclude that in order to extinguish the financial liability of Dinesh Kumar, the accused issued cheque amounting to ₹ 2,15,000/-. The next set of evidence establishes that the cheque issued by the accused was dishonoured on the ground of “exceeds arrangement” and despite issuance of notice he could not pay the cheque amount. In fact, after receipt of the notice, the accused did not do anything, thus his sleeping over the financial liability, in itself is a proof that he admitted his liability to pay the cheque amount. Issuance of cheque and admission of signature thereon would invoke presumption of legally enforceable debt in favour of holder and the accused needs to rebut such presump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 1,50,000/- (rupees one lac fifty thousand). After completion of formalities, the loan was sanctioned. The loan was to be paid back in 84 equal installments of ₹ 2800/- per month @ 13.75% interest. Subsequently, Dinesh Kumar did not pay the installments and he became defaulter. The accused, approached the complainant-Bank for repayment of the loan, as he stood guarantor to the loan and issued cheque No. 831361, dated 25.07.2011, for an amount of ₹ 2,15,000/- (rupees two lac fifteen thousand) of State Bank of India, Sunder Nagar Branch, for liquidating the liability of his son. On 02.08.2011 the cheque was received by the complainant-Bank and the same was dishonoured due to exceeds arrangement . Thus, the complainant-Bank i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of amount due and presumption of truth is also attached to the cheque, which was not encashed due to exceeds arrangement , thus no interference in the judgments passed by the learned Courts below is required. Lastly, it is prayed that the petition sans merits and the same be dismissed. 4. I have heard the learned counsel for the parties and gone through the record carefully. 5. The complainant-Bank has placed on record cheque, bearing No. 831361, dated 25.07.2011, amounting to ₹ 2,15,000/- and the same was dishonoured on the ground of exceeds arrangement . Thereafter, the complainant-Bank issued demand notice to the accused and the same was signed by him. The record shows that the accused stood as guarantor of his son, Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or. He has further admitted that after paying 2-3 installments, he did not pay further installments. He has further deposed, in his cross-examination, that he had the knowledge that in case he fails to pay the loan amount, his father will be saddled to pay the loan amount, as he stood his guarantor. 8. Now, after meticulously examining the evidence, which has come on record, it is clear that the accused stood guarantor of his son, Dinesh Kumar, for loan amount of ₹ 1,50,000/-, and all the documents were executed qua the loan with the complainant- Bank. It is also clear from the evidence that said Dinesh Kumar did not discharge his loan liability, as he failed to pay the installments of the loan. It has also come on record that Dine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of debt or liability depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise. 10. Reference to the facts of the present case clearly shows that though the word security is used in clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. It is undisputed that the loan was duly disbursed on 28th February, 2002 which was prior to the date of the cheques. Once the loan was disbursed and installments have fallen due on the date of the cheque a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque. Indeed, issuance of cheque and admission of signature thereon would invoke presumption of legally enforceable debt in favour of holder and the accused needs to rebut such presumption. However, in the case in hand, the accused failed to rebut such presumption. 11. In view of the law, as has been extracted hereinabove, and after carefully examining the material, which has come on record, this Court comes to the conclusion that the judgments passed by the learned Courts below are the result of proper appreciation of facts and the same are well within the confines of law. The judgments need no interference, as the complainant- ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
