TMI Blog2019 (1) TMI 1774X X X X Extracts X X X X X X X X Extracts X X X X ..... 849 OF 2008 - - - Dated:- 2-1-2019 - S.M. MODAK, J. For the Appellant : B.N. Mohta, Adv. For the Respondent : Mrs. A.R. Kulkarni, A.P.P. and A. Shelat, Adv. JUDGMENT 1. Respondent/accused was acquitted by the Court of 5th J.M.F.C., Nagpur on 23/09/2008. It was for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as the N.I. Act for the sake of brevity) on the complaint lodged by the appellant. Now the appellant is challenging the correctness of the decision before this Court. Parties will be referred by their original status. 2. The liability of ₹ 35,000/- by way of hand loan was created on 03/07/1999 by the complainant, whereas cheque towards its repayment was issued on 10/01/1906/2006 by the accused. Accused admits signature but denies handwriting of the contents of the cheque. So also there was summary suit filed by the complainant against the accused for recovery of ₹ 66,000/-. During his evidence before Court of Magistrate, he gave incomplete answers during cross-examination. 3. Trial Court held the cheque must have been given in the year 1999 (and not in the year 2006) and the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 165. This is relied upon by the complainant. Probably, the accused through his advocate may not have come across the change in the interpretation as expressed in case of Krishna Janardhan Bhat. 9. I have read all the three judgments. Ultimately, ratio of the judgment is nothing but enunciation of the principles of law. But, we should not forget that the enunciation is made by considering the facts. From these judgments, certain principles of law emerge. They are as follows : (a) On proof of introductory facts, presumption can be drawn in favour of the complainant. (b) Presumption is a rebuttable presumption (as compared to conclusive presumption). (c) Accused can rebut the presumption by making out a probable case. (d) The burden is not that of proof beyond reasonable doubt but principle of preponderance of probabilities. (e) It can be rebutted on the basis of available facts and circumstances. (f) No need for the accused to enter into witness box. (g) However, mere denial/suggestions are not sufficient. APPROACH OF TRIAL COURT: 10. So, I will apply these principles to the facts before me. My observations and inferences will be on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 35,000/-. There is a certificate issued by Nagpur Nagarik Sahakari Bank Ltd., dated 03/07/2008. It mentions about clearance of the cheque. It is at Exh.40. 14. Accused has not come with the defence of denial of taking hand loan. He comes with the defence that ₹ 35,000/- was repaid (see suggestion in cross-examination - It is not true to say that despite receipt of ₹ 35,000/-, we have filed false case against the accused despite blank cheque of the accused). On this defence, there is no need to examine her banker by the complainant. CONNECTION WITH HAND LOAN OF ₹ 65,000/- : 15. This Court feels that hand loan of ₹ 35,000/- and ₹ 65,000/- are different. There is no need to prove giving of hand loan of ₹ 65,000/-. Even otherwise, there is sufficient evidence to prove this hand loan also. This ₹ 65,000/- was advanced vide Cheque No. 128336, dated 04/10/2002. There is bank certificate at Exh.42 and photocopy of bank passbook at Exh.41. Trial Court committed wrong in interlinking hand loan of ₹ 65,000/- with hand loan of ₹ 35,000/-. EFFECT OF SUMMARY SUIT NO.214/2006 : 16. During cross-examination, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved the cheque for almost all along 7 years. Section 20 of the N.I. Act gives authority to holder of negotiable instrument to make it complete. So, whoever, may be the writer of contents of cheque, the holder/complainant gets authority to fill in date, amount and name of payee. Probably these points might have not been raised before the trial Court. It is important to note that there is no excess use of authority. That is to say an amount more than ₹ 35,000/- was not filled in the cheque. PRESUMPTION REBUTTAL : 22. As the foundational facts are proved, presumption under Section 139 of the N.I. Act is drawn in favour of the complainant. At the time of filing of complaint supporting documents were not filed. Power of attorney holder is aware about transaction of his wife/ complainant and the accused. He is not aware about his and brother's transaction with the accused. Trial Court has laid emphasis on it. This will not weaken the case of complainant unless any substantial evidence by the accused is adduced to show that these transactions have some connection with liability of ₹ 35,000/- arising out of the cheque in question. 23. PAN Card only shows the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to depose on behalf of the complainant. Original was brought at the time of evidence. Law on this point is settled. Power of attorney can give evidence (a) for the acts done in pursuance to the power, (b) for the acts done by the principal and of which the attorney is having personal knowledge. Husband knows the transaction and even he gave instructions along with wife to the advocate while giving notice. It is not challenged. So, I do not find any fault in the present evidence. FINAL CONCLUSION : 28. For the above discussion, I conclude that the accused failed to rebut the presumption under Section 139 of the N.I. Act. I conclude that complainant succeeds in proving issuance of cheque by the complainant for discharge of debt of ₹ 35,000/- towards complainant. I conclude that there is a failure on the part of the complainant to pay ₹ 35,000/- within 15 days of receipt of notice on the background of dishonour of cheque. Hence, complainant succeeded in proving commission of offence under Section 138 of the N.I. Act by the accused. SENTENCE : 29. There are 3 kinds of punishments laid down under Section 138 of the N.I. Act. There can either be imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X
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