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TMI Blog2018 (10) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... 98 822370/ 3.10.1998 Rs.3,99,009/- 7. 409 of 2006 1319 of 1999 822371/ Rs.3,99,009/- 8. 410 of 2006 3223 of 1999 822374 / 3.2.99 Rs.3,99,009/- 9. 411 of 2006 3224 of 1999 822361 / 1.2.1999 Rs.2,05,000/- 10. 412 of 2006 4222 of 2001 822356/ 1.2.2001 Rs.1,72,200/- 11. 413 of 2006 4323 of 1999 / 03.03.1999 / Rs.3,99,009/- 12. 414 of 2006 4324 of 1999 822362 / 1.3.1999 Rs.2,05,000/- 13. 415 of 2006 5753 of 1999 657385/ 01.05.1999 Rs.1,94,000 /- 14. 415 of 2006 8498 of 1999 836062 /03.09.1999 Rs.2,34,218/- 15. 150 of 2006 3514 of 2001 348804 /1.12.2000 Rs.1,72,200/- 16. 151 of 2006 1362 of 1999 657379 /1.11.1998 Rs.1,94,000/- 17. 152 of 2006 3226 of 1999 657382 / 1.02.1999 Rs.1,94,000/- 18. 153 of 2006 90 of 2000 657390 / 1.10.1999 Rs.1,94,000/- 19. 154 of 2006 6355 of 1999 657381/1.01.1999 Rs.1,94,000/- 20. 155 of 2006 6730 of 1999 657377 / 1.09.1998 Rs.1,94,000/- 21. 156 of 2006 4228 of 1999 657383 / 1.03.1999 Rs.1,94,000/- 22. 157 of 2006 6354 of 1999 657386/ 1.06.1999 Rs.1,94,000/- 23. 183 of 2006 7224 of 1999 822379/ 3.07.1999 Rs.3,99,009/- 24. 184 of 2006 2430 of 1998 822372/ 1.12.1998 Rs.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention of the respondent/ accused that the there was a hire purchase agreement entered by their company with the appellants company, for which pronotes, cheques and other documents have been received from them. On the other hand, the complaint company did not lend any loan as per the hire purchase agreement. Whereas, without lending loan, the complainant/appellant had presented the cheques given by the accused company issued for security purpose. There was no consideration passed on the subject cheques in question. Therefore the question of an offence under NI Act will not arise. 8.Before the Trial Court on the side of the complainant three witnesses were examined and eight documents were marked. On the side of the accused two witnesses were examined and one document was marked. 9.The learned Magistrate upon considering the oral and documentary evidence adduced on either side, acquitted the accused by holding that the subject Cheques were not supported by consideration. 10.I heard Mr.G.Ravikumar, learned counsel for the appellants and Mr.K.R.Rameshkumar, learned counsel for the respondents in all the Criminal Appeals and the documents available on record are perused. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no consideration was passed in respect of Ex-R1 Hire Purchase Agreement. Therefore certainly the burden of proof is on the complainant to prove that the cheques in question were issued towards a legally enforceable debt. However, the fact remains that the complainant failed to prove the passing of consideration on Ex- P1. Therefore, the complainant cannot resort asylum under Section 139 of N.I. Act. 15.It is the admitted case that the present hire purchase agreement Ex-R1 was entered into by the parties concerned for the previous transaction. At the same time it is relevant to point out here that the accused has not denied his signatures in any of the exhibits meant for the monetary liability upon the complainant. However, even in the cross examination the accused has not deposed that under some cloudy circumstances, he was constrained to put his signatures. Moreover, admittedly no reply was given to the statutory demand notice issued by the complainant and the accused has not disputed the existence of the Ex-R1 then he is liable to answer and to give explanation as to why Ex-R1 came to light. As a prudent person he ought not to have entered into such an agreement by putting his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39 of the Negotiable Instruments Act. This section provides that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability". The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 22. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly expected to cause a reply notice, but to disprove the case of the complainant he ought to have taken the steps and stands which are taken during the course of trial. 22.Apart from that section 20 of the N.I. Act would make it clear that once the issuance of cheque is admitted, then it is for the accused to disprove the case of the complainant, hence this court is under the compulsion to reiterate that the mere and bare denial alone would not help the accused to get rid of the case. Therefore the presumption as contemplated under section 139 of N.I. Act is in favour of the complainant and the learned trial judge is fell into error without appreciating the total circumstance of the case and the surrounding legal aspect in this regard. 23.Since the learned counsel for the respondents/accused has drawn the attention of this Court in respect of the memo filed to the effect of the death of the Managing Director of the accused company and contented that the liability of the company is absolved. This contention is legally unacceptable as the company represented by the 3rd accused who is one of the Director of the company. It is also relevant to answer here that though the company peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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