2020 (12) TMI 413
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....mprisonment for a period of two months more for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). 2. It is the case of the 1st respondent/complainant (hereinafter referred to as 'complainant') that the revision petitioner/accused (hereinafter referred to as the 'accused') borrowed a sum of Rs. 2,00,000/- on 15.08.2000 and issued Ext.P1 cheque for a legally enforceable debt. The complainant presented the said cheque for encashment, but the same was returned unpaid with the endorsement 'funds insufficient'. The complainant issued a legal notice to the accused through his Advocate calling upon the accused to pay the cheque amount. The said notice, sent by re....
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....two of the cheques in the presence of two Sub Inspectors of Police, Kundara, who had intervened in the dispute between the parties. He would further say that there was failure to settle the interest portion of the liability pursuant to a compromise arrived at between the parties, the complainant misutilized Ext.P1 cheque and filed the present complaint. In support of his contention, the Sub Inspector of Police, Kundara was examined as DW1. 5. On appreciation of the evidence, the learned Magistrate held that execution of Ext.P1 cheque was admitted by the accused and that it was proved that the cheque was dishonoured on account of "insufficient funds". The learned Magistrate disbelieved the version of the accused that the cheques were not is....
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....39; 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 t....
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....rvened the matter and settled the dispute for an amount of Rs. 1,00,000/- According to him, the said amount was paid by him on two occasions. He would maintain that there was only balance amount of Rs. 30,000/- as interest. He would maintain that claiming the interest, complainant filed a complaint under Section 138 of the N.I. Act utilising one of the blank cheques entrusted to the complainant. 8. It is well settled law that a revision against concurrent findings of conviction and sentence, the High Court does not, in the absence of perversity upset factual findings arrived at by the trial court. It is not for the revisional court to re-analyse and re- interpret the evidence on record in a case where the trial court and appellate court ha....
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....ad 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." 9. In view of the above, the burden was on the accused to prove that the blank cheques were issued to the ....