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TMI Blog2021 (3) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4,00,000/- (Rupees Four Lakhs) on 12.04.2016 from him, on a condition to repay the same and without returning the same, on 15.04.2016, he again took a loan of Rs. 3,00,000/- (Rupees Three Lakhs), with the further condition to repay the total amount of Rs. 7,00,000/-. The complainant further stated that, on 30.05.2016, the accused issued a Cheque No. 638037 for Rs. 7,00,000/- (Rupees Seven Lakhs) from his bank Account No. 0036010097470 of the United Bank of India, Karimganj Branch and accordingly he deposited the said cheque in his bank account No. 10916708769 at SBI, Karimganj Branch, but on 09.06.2016, the said cheque was dishonoured for insufficient fund in the petitioner's bank account. The complainant further stated that after dishonor of the cheque, he communicated with the accused, who assured him for arrangement of the funds available in his bank account, but failed to do so and the said cheque was again dishonoured on 15.07.2016, as intimated to him vide return memo issued by the bank. Thereafter, on 19.07.2016, the complainant issued notice to the accused through his engaged lawyer, informing the fact of dishonor of the cheque, with a request to make the payment of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney was given to the accused petitioner. Another point of argument is that the learned trial Court failed to appreciate that the petitioner took a loan of Rs. 1 lac as a loan and a blank cheque was issued to the complainant/respondent as security, but despite the repayment of the loan, the complainant has not returned the cheque to the accused petitioner, instead he himself wrote the figure of Rs. 7 lacs in the cheque in question. Accordingly, it has been contended that no presumption can be drawn that the cheque in question was issued in discharge of any debt or liability by the petitioner, under Section 118 and Section 139 of the NI Act. 8. In support of the contention, the learned counsel for the petitioner relied upon the following decisions:- 1) (2006) 6 SCC 39; M/s Narayana Menon @ Mani -Vs- State of Kerala & Anr., wherein it has been held that the Court has to presume a negotiable instrument to be for consideration unless the existence of consideration is disproved. Presumption under Section 118 A and Section 139 are rebuttable in nature and for rebutting the presumption, what is needed is to raise a probable defence and the same has to be proved by preponderance of prob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issuance of cheque to the complainant, but it was his plea that it was issued as a security. Then, we need to discuss as to why, cheque was issued as a security. It is the plea of the accused petitioner that he took an amount of Rs. 1 lac from the complainant as a loan and cheque was issued at that time as a security and the said loan has been returned, but the cheque was not returned to him. But save and except giving some suggestion in this regard, which is denied by the other side, the petitioner failed to substantiate his plea by adducing cogent and proper evidence. 12. The Hon'ble Apex Court in Hiten P Dalal -Vs- Batindra Nath Banerjee; (2001) 6 SCC 16, it has been held that mere plausible explanation given by an accused is not enough to rebut the presumption and accused has to disprove the prosecution case by giving cogent evidence that he has no debt or liability to issue the cheque. Further, we may profitably refer to the decision of Basalingappa -Vs- Mudibasappa; (2019) 5 SCC 418, wherein it has been held that a bare denial of passing of consideration and existing debt apparently would not serve the purpose of the accused, something which is probable has to be brought o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recent decision of the Hon'ble Supreme Court in Bir Singh -Vs- Mukesh Kumar; (2019) 4 SCC 197, wherein it has been held as below:- "...........Section 139 mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. However, the presumption is rebuttable by proving to the contrary. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused to prove by cogent evidence that there was no debt or liability. Mere denial or rebuttal by the accused was not enough. The presumption under Section 139 is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. Presumption of innocence is undoubtedly a human right. However, the obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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