TMI Blog2020 (11) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case, where the trial court has come to a probable conclusion. Unless the contrary is proved, it is presumed 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. In the case at hand, the accused has no case that he has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. Both the trial court and the appellate court rightly held that the burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the accused. Upon consideration of the complaint, the learned magistrate is prima facie satisfied that the case is made out against the accused. Hence, the learned magistrate took cognizance of the offence under Section 138 of the NI Act and the case was taken on file as ST No. 118 of 2010. Parties are hereinafter referred to as the 'complainant' and 'accused' according to their status in the court below unless otherwise stated. 3. It is the case of the complainant that the accused borrowed a sum of ₹ 2,00,000/- from the complainant and issued a cheque dated 31.08.2007 for ₹ 2,00,000/- drawn on the account maintained by the accused with Vijaya Bank, Tirur Branch. The complainant presented the cheque for encashment through the Ponmundam Service Co-operative Bank, Vailathur Branch, but the cheque was returned unpaid with the endorsement insufficient funds . Statutory notice was issued on 15.10.2007 to the accused calling upon him to pay the amount. The accused received the notice on 16.10.2007. He sent a reply notice on 19.10.2007 raising contentions. Hence, the complaint. 4. On service of summons, the accused appeared before the trial court. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature referred to in Section 138 of the NI 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 NI Act, it becomes evident that in a trial under Section 138 of the NI 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 NI 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 bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount covered under Ext.P1 cheque. In Joseph Sartho's case (supra), a portion of the amount was repaid. In this case, there is nothing on record to show that a portion of the amount was repaid. What was paid, as per Ext.P10, would not come under the purview of the portion of the amount covered under Ext.P1. Hence, the principles formulated in Joseph Sartho's case (supra) are not applicable in this case. 11. It is well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case, where the trial court has come to a probable conclusion. Unless the contrary is proved, it is presumed 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. In the case at hand, the accused has no case that he has not signed the cheque or parted with under any threat or coercion. That a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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