TMI Blog2021 (5) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the evidence of PW1 and PW2 is insufficient to prove the transaction and execution of the cheque. The Court below further found that the amount shown in Ext.P3 cheque does not tally with Ext.P15 tax invoice and Ext.P9 ledger extract. The presumption under S. 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. There is the mandate of presumption of consideration in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of S. 138. Once signature, execution and handing over of the cheque are satisfactorily proved, the presumption u/s. 139 of the NI Act would come into play and remain in force until the accused discharges the burden. The complainant has successfully established the signature, execution and handing over of the cheque. There is absolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 7. The learned counsel for the appellant submitted that the complainant has succeeded in proving the execution of Ext.P3 cheque by examining PWs 1 and 2 and, hence, presumption under Sections 118 and 139 of the NI Act would come into play and the accused has failed to rebut the said presumption. The Court below went wrong and committed illegality in acquitting the accused, argued the counsel. 8. The complainant admittedly is a Public Limited Company incorporated under the Companies Act engaged in the business of manufacturing and selling tea. It is also not in dispute that accused is a distributor of the complainant company at Calicut. The case of the complainant is that it used to supply tea to the accused on credit basis and towards the discharge of the amount due, the cheque in question was issued. In order to prove the transaction as well as the issuance and execution of the cheque, two witnesses were examined on the side of the complainant as PW1 and PW2. PW1 is the Accounts Officer and power of attorney holder of the complainant company. Ext.P13 is the copy of the minutes of the company authorizing PW1 as the PA holder of the complainant company. He gave evidence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hiten P. Dalal v. Bratindranath Banerjee [ (2001) 6 SCC 16] and in Rangappa v. Sri Mohan [ (2010) 11 SCC 441] held that the cheque shall be presumed to be for consideration unless and until, the Court forms a belief that the consideration does not exist or considers the non-existence of consideration was so probable that a prudent man would under no circumstances of the case, act upon the plea that the consideration does not exist. In Uttam Ram v. Devinder Singh Hudan and Another [ 2019 (5) KHC 179], it was held that when a cheque is issued, it is presumed that the cheque was drawn for consideration and the holder of cheque received the same in discharge of an existing debt. It was further observed that: A dishonour of cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability . In Kumar Exports v. Sharma Carpets [ (2009) 2 SCC 513], the Supreme Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the cheque was issued as consideration for a legally enforceable debt. That apart, the evidence given by PWs 1 and 2 coupled with Exts.P9, P14 and P15 are sufficient to prove the transaction, execution and issuance of the cheque. PW1 has clearly stated that the cheque was signed in his presence by the accused and handed over to him. There is nothing to disbelieve the said version. PW1 stated in cross-examination that the cheque in question was issued towards the tea supplied on 31/1/2006. Invoice dated 31/1/2006 has been produced and marked as Ext.P15. The said invoice is issued to the accused for the supply of tea worth ₹ 18,002/-. Ext.P14 is the delivery chalan in respect of the said goods signed by the accused. Exts.P14 and P15 were marked through PW2. There is no much challenge to it. Ext.P9 is the ledger extract in respect of the transaction by the complainant company with the accused. Entry dated 31/1/2006 in Ext.P9 corresponds to Ext.P15 invoice. It is true that the amount shown in Exts.P3, P9 and P15 does not tally. But it is pertinent to note that the debt due to the complainant company as on the date of the execution of Ext.P3 cheque was more than the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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