TMI Blog2021 (3) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of Negotiable Instruments. Even under Section 139, a rebuttable presumption shall be raised that the cheque in question was issued towards discharge of legally enforceable debt. The accused has not at all denied his signature on Ex.P.1. The accused has contended that other writings on Ex.P.1 do not belong to him. PW.1 admitted hand writing on Ex.P.1 is not of accused. It is not objectionable or illegal in law to receive an inchoate negotiable instrument duly signed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully binds the maker of instruments to the extent it purports to declare. The Trial Court on appreciating the evidence on record has rightly held that the complainant has established that the cheque in question was issued for discharge of debt and accused has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt issued a legal notice dated 27.03.2010 to accused to his both addresses. The accused issued reply notice. With these averments the complainant had filed complaint for the offence punishable under Section 138 of the N.I. Act. 05. The complainant herself examined as PW.1 and produced documents as per Exs.P.1 to 7. The accused denied the incriminating evidence while recording his statement under Section 313 of Cr.P.C. Accused led defence evidence by examining himself as DW.1 and he examined two witnesses as DWs.2 and 3 and got marked documents as per Exs.D.1 to 10. 06. The Trial Court after hearing arguments of both sides, formulated point for consideration and passed judgment dated 08.03.2013 in C.C.No.3811/ 2010 and convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced him to pay a fine of ₹ 10,00,000/-. In default to pay fine, the accused shall undergo simple imprisonment for a period of six months. Out of this fine amount, a sum of ₹ 9,75,000/- was ordered to be paid as compensation to the complainant and remaining amount was ordered to be remitted to the State. 07. Accused challenged the said judgment of conviction an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have the capacity to preponder over the case of the complainant then only such materials should be accepted. Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharged the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt. With these submissions, he prayed to allow the appeal. 11. Having heard the learned counsel for the appellant - complainant and on perusal of the records, the following point that arise for consideration:- Whether the Appellate Court has erred in appreciating the evidence, allowing the appeal and acquitting the respondent - accused? 12. The answer to the above point is in the 'Affirmative' for the following reasons. 13. A mandatory presumption is required to be raised in respect of Negotiable Instrument in terms of Section 118 (b) of the Act. Section 139 of the Act merely raises a presumption that the cheque has been issued for discharge of any debt or other liability. The proceeding under Section 138 of N.I. Act is quasi criminal in nature. In these proceedings, proof beyond reasonable doubt is subject to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. 16. In the light of the above decision, the case on hand is to be considered. PW.1 - complainant has deposed that she was working as Superintendent in institution run by the accused viz., Mahatma Jyotibha Phule Padavi Mahavidyalaya. On the request of accused for hand loan of ₹ 7,00,000/- for improvement of institution and business necessities, she has advanced a sum of ₹ 7,00,000/- to accused on 10.06.2009 by pooling out funds from her family members and relatives. The accused agreed to repay the loan within six months. After six months, the accused did not repay the loan. After repeated persuasion accused issued Ex.P.1 - Cheque dated 15.03.2010 for ₹ 7,00,000/- to the complainant drawn on Canara Bank, Subramany Nagar, Bengaluru. She has presented the cheque for encashment, but cheque returned u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks and locker key in his office. If accused had really known that the complainant stolen the cheque book what made the accused to keep quiet without informing to the police as he had already lodged the complaint with regard to loss of cheque book, but, he has not done so. No documents were produced by the accused to show that even thereafter he has lodged the complaint against the complainant alleging theft. 18. DW.1 in the cross-examination categorically stated that he took the cheque book with him to Bengaluru. Apart from cheque book one he had lost, he did not lose anything. He further stated that he had lost one cheque book out of 4 to 5 cheque books, which he had in his possession when he was at Bengaluru. The accused gave memo to the staff of his college. But they have given reply to the memo. The accused did not get suspicion on complainant for not having replied the memo. Accused gave another notice to the complainant on account of her absence to duty and failure to give reply to the memo, but the copy of the same was not produced. 19. The accused has examined two witnesses as DWs.2 and 3 who are admittedly his employees working in the institution run by him. They t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onduct of the accused creates doubt with regard to version of loss of cheque book. Therefore, alleged loss of cheque book is not worth to be believed. There is no evidence on record to say that the complainant had access to cheque books and other bank documents of accused. No suggestions were made in the cross-examination of PW.1 that, complainant had access bank documents such cheque books belonging to the accused. In the cross-examination of PW.1 it is elicited that during relevant point of time the complainant and her close relatives did not had sufficient bank balance. It is also elicited that neither her husband nor her brothers issued cheque to her. But that does not mean that she has not at all received money from her relatives at all. The complainant's contention was that she could pool out money from her close relatives. Admittedly, one of her brothers is a Teacher, another brother is running finance and one brother is practicing law at Bengaluru since 08 years and her father worked as Work Inspector with PWD and her mother had deposits with Industrial Co-operative Bank. It was also elicited in the cross-examination that her husband was working in Police Department as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. The fact is said to be proved when, after considering the matters before it the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. 26. The Trial Court on appreciating the evidence on record has rightly held that the complainant has established that the cheque in question was issued for discharge of debt and accused has failed in all the attempts to make a probable defense which would falsify the case of prosecution. Therefore, the Trial Court has rightly convicted the respondent - accused for the offence punishable under Section 138 of N.I. Act. The Appellate Court without appreciating the evidence in proper perspective and on assumption has held that the complainant has not proved that Ex.P.1 - Cheque issued towards payment of legally enforceable debt. The said finding of the Appellate Court is erroneous. Therefore, the judgment passed by the Appellate Court in Crl.A.No.18/2013 dated 16.06.2014 required to be set-aside and judgment passed in C.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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