TMI Blog2020 (10) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act are very much available to the complainant and the burden shifts on the accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THE RESPONDENT : SRI.C.A.CHACKO, SMT.C.M.CHARISMA, R1 BY ADV. SRI.N.M.MADHU FOR THE RESPONDENT : SR.PP.M.S.BREEZ ORDER This revision petition is directed against the judgment dated 31.03.2008 rendered by the Additional Sessions Judge (Adhoc) Fast Track Court-I, Thrissur in Crl. Appeal No.197 of 2005, whereby the learned Sessions Judge confirmed the conviction and sentence imposed by the trial court for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, NI Act ). 2. It is the case of the complainant that the accused issued a cheque dated 14.12.1999 for ₹ 75,000/- to the complainant for a legally enforceable debt. When the complainant presented the cheque for encashment, the same was returned with an endorsement account closed by a cheque returned memo dated 24.12.1999. On 05.01.2000, the complainant issued a legal notice to the accused through his advocate calling upon him to pay the cheque amount. The said notice sent by registered post was served on the accused. On 19.01.2000, the accused sent a reply raising false contentions. Hence, the complaint was lodged before the trial court. 3. Upon co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. That apart, Section 139 of the Act 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 of the Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued for discharging a debt or liability. Paragraphs 39 and 40 of the above case are relevant in this context and the same is extracted below for convenience of reference:- 39. It is not the case of the respondent- accused that he 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. The second question is also answered in the negative. 40. 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. 8. In view of the above settled legal principles, even a blank cheque leaf voluntarily signed and handed over by the accused, which is to some payment, would attr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
