TMI Blog2020 (11) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 was on the accused to disprove the initial presumption under Sections 118 and 139 of the NI Act. The burden is not discharged rightly. The complaint was filed before the trial court in 2007. The complainant has been prosecuting this case for the last 16 years. The accused is sentenced to pay a fine of ₹ 2,00,000/- and in default of payment of fine to undergo simple imprisonment for a period of four months. In view of the situation prevailing in the country due to Covid-19 pandemic, the accused is given six months time from today to pay the fine amount - the criminal revision petition is partly allowed. - Crl.Rev.Pet.No.2777 OF 2007 - - - Dated:- 23-11-2020 - THE HONOURABLE MR.JUSTICE N.ANIL KUMAR FOR THE PETITIONER : BY ADV. SRI.P.HARIDAS FOR THE RESPONDENT : R1 BY ADV. SRI.B.BALRAJ R1 BY ADV. PUBLIC PROSECUTOR R1 BY ADV. SRI.SAJJU.S R1 BY ADV. SRI. K.SHAJ ORDER This criminal revision petition is directed against the judgment dated 23.11.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Procedure for the purpose of enabling him to explain any circumstance appearing in the evidence against him. He denied all the incriminating circumstances. The accused submitted that he borrowed an amount of ₹ 2,00,000/- from the complainant and his wife on 15.02.1999. The accused further submitted that at the time of borrowing the amount, he issued two blank cheques as security for the amount and thereafter, he repaid the whole amount with interest. In support of the defence, DW1 was examined and marked Exts.D1 and D2. Ext.D1 is the reply notice and Ext.D2 is the receipt showing the dispatch of Ext.D1. 5. On appreciation of the evidence, the learned magistrate held that the execution of the cheque was proved by the complainant and that the cheque was dishonoured for want of sufficient funds. The complainant issued statutory notice calling upon the accused to pay the amount within fifteen days from the date of receipt of the statutory notice. It has come out in evidence that the accused failed to pay the amount covered under the cheques within fifteen days from the date of receipt of the statutory notice. All other statutory formalities have been complied with. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence 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 complainant. 8. In this case, in order to prove the case of the complainant, PW1 was examined. According to him, the accused borrowed money from the him and issued Exts.P1 and P2 cheques for an amount of ₹ 1,00,000/- each to the complainant for the discharge of a debt and when the cheques were presented for collection, they were returned for want of sufficient funds. The complainant issued Ext.P5 notice calling upon the accused to pay the amount within fifteen days. According to the accused, the transaction was taken place on 15.02.1999. In Ext.D1 reply, he had stated that the accused borrowed an amount of ₹ 2,00,000/- on 28.09.1999 from the complainant and his wife. In Ext.D1, he further contended that he had repaid an amount of ₹ 3,22,000/- to the complainant in 62 instalments. According to him, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the decision reported in Santhi C. v. Mary Sherly Another [2011 (3) KHC 22] and contended that issuance of a blank signed cheque would not amount to issuance of cheque and the issuance of a blank cheque can only be treated as a cheque leaf. This decision is to be evaluated in the light of the dictum in Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197]. In the said decision, the Supreme Court held that in view of Section 139 of the NI Act read with Section 118 of the NI 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 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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