9911796707
TMI Blog2020 (3) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant, he gave cash loan of Rs. 80,000/- to the respondent/accused and for that payment two cheque bearing No. 737011 dated 30.12.2007 for Rs. 60,000/- and No.737014 dated 15.01.2008 for Rs. 20,000/- of District Co-operative Bank Limited Durg, Branch Balod were issued by him in favour of the appellant. Both cheque were presented before the Bank for encashment in his account at State Bank of India in A/c. No.8086364 and both the cheque were dishonoured on account of insufficiency of fund in the account of the respondent. Thereafter legal notice was sent and even after receiving the notice the payment is not made, hence, complaint under Section 138 of the Act 1881 was filed before the said Court which resulted into acquittal. 3. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant for discharge of debt, whether the cheque deposited in the bank for clearance were returned unpaid on account of insufficiency of fund in the account of the respondent and whether after legal notice the respondent has not returned the amount of cheque to the appellant. 7. The appellant side adduced evidence of Prashant Parakh (PW-1), Branch Manager, Distt., Co-operative Central Bank, Balod Rohit Kumar (PW-2) and Assistant Manager Sanjay Sharma (PW-3) and exhibited documents P/1 to P/15. In rebuttal the respondent side submitted documents Ex-D/1 to D/11. From the statement of Prashant Parakh (PW-1), it is established that the loan was advanced to the respondent for a sum of Rs. 80,000/- between 02.8.2007 to 05.8.2007 due to nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns as to negotiable instruments. -Until the contrary is proved, the following presumptions shall be made:- (a) of consideration -that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date -that every negotiable instrument bearing a date was made or drawn on such date;" 9. It is not a case of the respondent that he has not signed the cheque. A meaningful reading of the provisions of the Act, 1881 makes it ample clear that the person signed the cheque over to a payee remains liable and he may adduce any evidence to rebut presumption. Presumption will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vanced on behalf of the respondent is not sustainable. The act of the respondent falls within mischief of Section 138 of the Act, 1881. 12. Accordingly, the appeal is allowed. Finding of the trial Court is hereby set aside. The respondent is convicted under Section 138 of the Act, 1881. The date of issuance of cheque is 02.8.2007. The appellant is entitled to interest 8% to the amount advanced by him. Accordingly, the respondent is sentenced to pay fine of Rs. 1,60,000/- (Rupees One lakh sixty thousand only) for offence under Section 138 of the Act, 1881. The trial court shall make effort to liquidate the amount as per provisions of CrPC. It is made clear that if the respondent is sent to jail for non-recovery of amount, the payment of amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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