TMI Blog2020 (10) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... owards discharge of legally recoverable debt arises. Then the burden shifts to the accused to rebut the said presumption by acceptable evidence. The accused/DW.1 in his cross-examination has uneqivocally admitted that the notice - Ex.P3 was served on him. If Shivanna and the complainant colluded with each other to commit fraud on the accused and presented the cheque which contains huge amount, in the ordinary course at the first instance the accused should have replied Ex.P3 denying the contents or his liability. Thereby, there was a deemed admission of the contents of the notice. That circumstance went against the accused - Either by way of reply to the notice or in the cross-examination of PW.1, there was no denial of lending capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for ₹ 2,14,800/- drawn on Canara Bank, Channarayapatna Branch on the account of the accused for realization. Vide memo - Ex.P2 the said cheque was dishonoured with the endorsement funds insufficient . 5. Thereafter, the complainant issued notice to the accused as per Ex.P3 on 21.07.2009 informing the accused about dishonour of cheque and calling upon the accused to pay the cheque amount. As per Ex.P4, the notice was served on the accused. The accused did not reply the notice nor paid the cheque amount. Therefore, the complainant filed complaint before the Principal Civil Judge and J.M.F.C., Channarayapatna to prosecute the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. 6. The Trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nna. He further claimed that since the said tractor loan was not disbursed by the Bank as security for the payment of the tractor amount, the accused had given the cheque to Ningegowda. 10. The accused further claimed that on Bank disbursing the loan, the tractor amount was cleared, still Ningegowda and the complainant in collusion with each other to make wrongful gain, presented the cheque and have filed the complaint. 11. The Trial Court held that since the accused admitted that the cheque belongs to his account and his signature on the same, the presumption under Section 139 of the Negotiable Instruments Act to the effect that the cheque was issued towards discharge of loan arises. The Trial Court further held that the accused fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the cheque which contains huge amount, in the ordinary course at the first instance the accused should have replied Ex.P3 denying the contents or his liability. Thereby, there was a deemed admission of the contents of the notice. That circumstance went against the accused. 16. Either by way of reply to the notice or in the cross-examination of PW.1, there was no denial of lending capacity of the complainant. Even in the evidence of the accused, there was no denial of the lending capacity. Therefore, the contention of the learned counsel for the petitioner regarding the lending capacity is apparently untenable. 17. According to the accused, there was a tractor transaction between his father-in-law Ningegowda and Shivanna and the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
