TMI Blog2003 (4) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... d for encashment it was dishonoured by the bank on the ground of insufficiency of funds. Notice of demand was issued. There was no useful response. Payment was not effected. It is in these circumstances that the complainant came to court with this complaint under Section 138 of the Negotiable Instruments Act. In respect of the other cheque also there was a prosecution. The same has been compromised after making some payment, it is concerned by both sides. 3. The learned Magistrate took cognizance. The accused entered appearance and denied the offence alleged against him. Thereupon the complainant examined himself as PW1 and the Manager of the drawee bank as PW2. Exts. P1 to P6 were marked. The accused denied all circumstances which appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the accused therein is produced before Court. The learned Magistrate was in these circumstances eminently correct in invoking the presumption of due service under Section 114 of the Evidence Act and Section 27 of the General Clauses Act. I find the said finding to be eminently correct and the same does not call for any interference. 7. The more serious question to be considered is whether the finding of the learned Magistrate that the cheque is not proved to have been issued for the discharge of the legally enforceable debt/liability is correct or not. In this context it must be noted particularly that a financial transaction between the accused and the complainant is admitted. It is also admitted that the cheque in question bears t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burden on the accused is akin to that on a litigant in a civil proceedings. Any fanciful defence will not suffice. The test of probabilities will have to be passed. 9. Coming back to the facts in the instant case the accused offers an explanation that he was compelled, coerced and threatened to hand over the cheque. The incongruity in the evidence of DWs. 1 and 2 is in this context of crucial relevance. The evidence of DW2 would suggest that the matter was talked over and settled between the accused and the complainant in the presence of mediators. Thereafter DW2 was sent to get the cheque book from the house of the accused. The cheque book was brought. The obvious intention was to issue a cheque to discharge the liability which was agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, it is contended. Even if the version of the accused be disbelieved, the version of the complainant cannot automatically claim acceptance. Relying on certain inconsistencies and incongruities in the evidence of the complainant it is contended that notwithstanding the failure of the accused to rebut the burden imposed on him under Section 139, complainant's case must fall for the reason that such case was not proved beyond reasonable doubt. 11. The crucial question is whether the cheque has been issued for the discharge of a legally enforceable debt/liability. In a prosecution under Section 138 of the Negotiable Instruments Act the complainant is not obliged to establish the liability as in a suit claiming recovery of money. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, account holders must deal with their cheques in such a manner which would ensure such credibility. The convenient defence urged by indictees that they handed over blank signed cheque leaves or left blank signed cheque leaves accessible to all and sundry cannot therefore be accepted readily by any court having a commitment to usher in the legislative dream which Section 138 seeks to achieve. Compelling and convincing evidence will certainly have to be adduced by an indictee who even according to himself has been guilty of the indiscretion of dealing with cheques in an irresponsible manner contrary to the mandate of the legislature underlying Section 138. In this view of the matter also I am satisfied that sufficient evidence has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not in the handwriting of the drawer, Section 138 of the Negotiable Instruments Act is not applicable or that the presumption under Section 139 will not be available. Normally in the absence of compelling reasons it has to be assumed that the cheque was not a blank cheque when it was handed over. A person so handing over a blank cheque must be assumed to have given implied authority to such person to whom the cheque is handed over to fill up the relevant details. The entries made in the cheque under such authority cannot normally amount to material alterations also. Merely because the entries are in the handwriting of another, the cheque will not cease to be a cheque or a bill of exchange. The presumption under Section 139 of the Negot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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