TMI Blog2020 (10) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings. It is not for the Revisional Court to re analyse and re interpret the evidence on record. Here it is not the case of the respondent accused that she either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In the absence of any finding that the cheque in question was not signed by the respondent accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant complainant, it may reasonably b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 13,00,000/ (Rupees thirteen lacs only and after accepting ₹ 9,00,000/ from complainant, the applicant and her son executed an agreement to sell dated 5/12/2012 before the Notary. That, the applicant had issued a cheque No.050245 to the complainant for the amount of ₹ 9 Lacs dated 17.9.2013 of the Kalol Nagrik Sahkari Bank Ltd., Kalol. The Complainant had submitted the said cheque for encashment in his account of Bank of Baroda, Kalol branch, but on the same day, the said cheque was returned with the endorsement 'Today's balance insufficient' on 19.09.2013. Therefore, the complainant informed the same to the applicant. Thereafter, the respondent No.2 complainant issued Regd. A.D. Notice dated 19.10.2013 under Section 138 of the N.I. Act to the applicant, through his advocate, which was received on 22.10.2013. Applicant, after receipt of the notice, did not reply, nor manage to pay the amount, demanded by the complainant in his notice, without prescribed time. Therefore, the complainant filed Criminal Case No.73/2014 in the Court of the learned Additional Chief Judicial Magistrate, Kalol, under Section 138 of the NI Act, for his legal dues o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chief Exh.17 that he has received the cheque Exh.18 towards his legal dues. That no demand for specific amount has been made in the notice Exh.21. Thus, the notice does not attract the criminal provisions of the NI Act. That no witness has been cited in the Banakhat Exh.24 and it is not registered before the office of the Sub Registrar and as to how the amount of ₹ 9 Lacs has been paid to the applicant is not coming on the record and there are no receipts for payment of the same. That the ink with which the accused has put signature in the cheque and other writings are different. That both the Courts have failed to consider that there is no evidence to prove that the outstanding amount of the complainant is legal, however, the applicant was convicted. That both the Courts have not taken into consideration the defense of the applicant raised in the cross examination. That no any evidence has come on record, as stated in the impugned order by the Ld. Magistrate. That both the Courts have not properly considered the arguments advanced by the applicant. That the Ld. Magistrate has misinterpreted the evidence produced before him. That the Ld. Appellate Court erred in relying upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the below mentioned provisions: Sections 138 and 139 of the Negotiable Instruments Act are set out herein below for convenience: 138 Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as drawn. Statutory Notice of dishonour of the cheque was duly issued to which there was no response from the respondent accused. The first appellate court confirmed the factual findings. The trial Court and the Appellate Court arrived at the specific concurrent factual finding that the cheque had admittedly been signed by the respondent accused. The Trial Court and the Appellate Court rejected the plea of the respondent accused that the appellant complainant had misused a blank signed cheque made over by the respondent accused to the appellant complainant for obtaining loan or signature of the accused was taken in a blank cheque. It appears that vide Ex. 17, the complainant was examined before the trial court wherein he has clearly stated that as the accused was in need of money, she requested to sell the land in question of her share to the complainant. On advice received by the complainant through his learned advocate, land was not permissible to be purchased by him except block division. The accused shown her willingness for block division of the land in question and clear the title of the land, and thereafter, to execute a sale deed in favour of the complainant and with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d respondent was known to him since last 10 12 years. Of course, no money transactions were made by her with him previously. There was no talk with the accused to make accommodation for Buffalo. He has denied that at that time, agreement to sell Ex. 24 was prepared. He has denied that he was engaged in the business of money lending. He has further denied that there was no agreement to sell with the respondent accused nor any cheque was issued by her. It is further denied that with a view to obtain loan by the complainant, in blank cheque, her signature was taken by the complainant. He has stated that upto December 2012, ₹ 9 lacs was paid by him in cash to the accused. He has further denied that cheque given by respondent accused was not deposited by him within time limit. He has further denied that no legal notice was issued by him. It is not accepted that however ₹ 3 lacs were paid by the respondent accused though adding interest amount, he filled up cheque. It is denied that bank account was opened by him in the Nagrik Bank, Kalol on behalf of the respondent accused and cheque book was received by him from the respondent accused. He has further denied that no cash am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the cross examination of the complainant. Before the learned Additional Sessions Court for the first time argument was advanced by the respondent accused that it was not a legal debt of the amount shown in the agreement to sell but this amount was received by her son and cheque might have been issued in support of the agreement to sell. The liability of his son for his share of ₹ 4.50 lacs was raised before the first appellate court by the respondent accused, which cannot be considered by the court. Defence raised by the respondent accused that her liability may be to the extent of ₹ 4.50 lacs raised before the first appellate court was rightly dismissed by the court. The legality of the notice as contended by the respondent accused cannot be believed because if we consider the notice Exh.21, specific amount was demanded by the complainant and requested to pay the amount within the time limitation. It is nothing on record that any amount of ₹ 3 lacs was paid in cash by the respondent accused to the complainant, and therefore, defence raised by her is rightly refused by the court below. Further defence of non registration of the agreement to sell Ex.24 was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 513, Hon'ble Supreme Court reiterated that there is a presumption that every negotiable instrument duly executed, is for discharge of a debt or liability, but the presumption is rebuttable by proving the contrary. In the facts and circumstances of the case it was found that the cheque in question was towards advance for purchase of carpets, which were in fact not sold by the payee of the cheque to the drawer, as proved from the deposition of an official of the Sales Tax Department, who stated that the payee had admitted that he had not sold the carpets. Here it is not the case of the respondent accused that she either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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