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TMI Blog2020 (11) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to undergo imprisonment till the rising of the court and to pay a compensation of Rs. 2,00,000/- and in default of payment of compensation to undergo simple imprisonment for a period of two months more under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, "NI Act"). 2. The revision petitioner was the accused in ST No. 118 of 2010 on the file of the Judicial First Class Magistrate Court-II, Tirur and the appellant in Crl.Appeal No.354 of 2010 on the file of the Additional Sessions Court (Adhoc)- III, Manjeri. The 1st respondent filed a complaint under Section 138 of the NI Act before the trial court alleging commission of the offence punishable under Section 138 of the NI Act against the accused. Upon con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of enabling him to explain any circumstance appearing in the evidence against him. He denied all the circumstances. He stated that he owed an amount of Rs. 55,000/- only to the complainant. According to him, before the issuance of statutory notice, the complainant had collected Rs. 25,000/- from him. However, no defence evidence was adduced. 5. On appreciation of the evidence, the learned magistrate held that the execution of the cheque was admitted by the accused and that it was proved by the complainant that the cheque was dishonoured for the reason "insufficient funds". Hence, the learned magistrate concluded that the cheque was issued by the accused for the discharge of debt or liability. 6. Heard Sri.Sunil Nair Palakkat, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench decision in Joseph Sartho v. Gopinathan Nair [2008 (4) KLT 509], the learned counsel for the revision petitioner contended that if a portion of the amount covered by the cheque was repaid, the cheque for the whole amount is unsustainable in a prosecution under Section 138 of the NI Act, presumably, for the reason that the amount covered under the cheque does not reflect the actual dues to the complainant. Going by Ext.P10, it is clear that the amount of Rs. 6,000/- agreed to be paid in Ext.P10 is not towards the discharge of the principal amount of Rs. 2,00,000/-. The payment of Rs. 6,000/- per month was not the actual amount due to the complainant as per Ext.P10, but a separate arrangement to get interest for the principal amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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. In Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197], the Supreme Court held that in view of Section 139 of the Act read with Section 118 of the Act thereof, the Court has to presume that the cheque has been issued 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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