TMI Blog2010 (3) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... id cheque had returned dishonoured for funds insufficient . The notice demanding payment was served, but the accused did not pay the amount demanded by the notice. 4. Facts in brief are : The accused - Mangesh Govindrao Supare is the Proprietor of Shri Vyankatesh Housing Agency. The accused owned layout in Khasra No. 19 : P.H. No. 36 situated at Mouza Dhamna, Tah. Dist. Nagpur. The land was demarcated into plots in the year 2006. There was an agreement to sell entered on 7.8.2006 between the accused and complainant, in respect of Plot No. 30 admeasuring 1648 sq.ft. in consideration of ₹ 1,64,800/-. At the time of agreement, earnest money in the sum of ₹ 41,000/- was paid by the complainant and rest of the consideration was payable by monthly installments of ₹ 4000/- for 25 months and ₹ 23,000/- was payable at the time of execution of sale deed. A sum of ₹ 65,000/- was paid towards monthly installments, when the accused expressed inability to execute sale deed and proposed the complainant to accept the amount of compensation instead of @ ₹ 150/- per sq.ft. and agreed to refund ₹ 1,55,000/-. The complainant accepted the proposal. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) was very much in evidence in Para Nos. 2 and 3 of affidavit. It is also averred and proved as to how the for inability of accused to sell the plot, cheque in question was issued for ₹ 1,55,000/- as refund of earnest money plus compensation in view of settlement between the accused and the complainant. The fact that the cheque in question was presented for payment and returned dishonoured as also the demand made through the cheque amount by notice in writing sent and failure of the accused to pay the amount within 30 days from the receipt of notice, are all facts established in evidence led by the complainant. It is thus submitted that the learned trial Magistrate adopted approach which was perverse and contrary to record. According to the learned Advocate for the complainant it was not necessary to call attesting witnesses to prove execution of agreement to sell in writing (vide Section 68 of the Indian Evidence Act), because an agreement to sell is not compulsorily registrable nor it require attestation. It may be oral. Hence Exh.29 was duly proved by evidence of complainant and was also marked as Exhibit as there was no any objection from the accused. Thus, learned Magist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. It is settled law that to rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt, as is expected of the complainant in a criminal trial to prove offence. The accused may adduce evidence to prove that there was no debt or liability to be discharged by him. At the same time, it has to be borne in mind that bare denial of the passing of the consideration and existence of debt/liability, apparently would not serve the purpose of the accused to seek dismissal of the complaint. Something which is probable has to be brought on record satisfactorily for getting the burden of proof shifted back to the complainant. If case of the complainant is false then the accused as any reasonable ordinary prudent person is bound to react sharply by replying notice to the accused. Demand notice in wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the accused had failed to rebut the statutory presumptions, it ought to be concluded that the presumption itself was tantamount to proof of the case of the complainant. 11. Looking into the submissions at the Bar in the light of the relevant legal provisions, it seems that the trial Court did notice the fact that cheque in question issued was signed by the drawer (accused) drawn on the Nagpur District Central Cooperative Bank Ltd., Hudkeshwar Branch and that there is presumption in favour of the complainant in view of Section 139 of the NI Act. However, it appears that the learned trial Magistrate has misled herself. The logic of the trial Court that the accused has denied the agreement to sell (Exh.29) and his signature and, therefore, it is not proved, appears strange, particularly when presumption statutorily available to the complainant were not rebutted by the accused by adducing satisfactory evidence to the contrary. It must be borne in mind that Section 138 of the Act aims at punishing unscrupulous drawers of cheques who though purport to discharge their liability by issuing cheque, have no real intention to pay. Trickster drawer may find out ways and means to defeat t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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