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TMI Blog2021 (6) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... shment through the Pampakuda branch of the Ernakulam District Co-operative bank, it returned dishonoured due to insufficiency of funds; he got back the cheque on 13.04.2010. On 16.04.2010, he caused to issue a lawyer notice demanding the amount; but the amount was not paid. Instead, the accused sent a reply denying liability and narrating a false story, that made him to approach the trial court. 3. On appearance and when particulars of offence were read over and explained, the first respondent pleaded not guilty. Thereafter, the appellant/complainant gave evidence as PW1 and Exts. P1 to P6 were marked. The first respondent was defended by a counsel of his choice. Still, for reasons best known to him, PW1 was not cross examined. Thereafter, the first respondent was examined under Section 313(1)(b) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C.; he denied the incriminating circumstances and maintained that he had agreed to pay Rs. 50,000/-, which alone was borrowed, with interest, within one month. There was no evidence in defence. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate disbelieved the version of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eable liability. 7. As noticed earlier, PW1/the appellant was not cross examined by the counsel for the first respondent. All the incriminating materials were then put to the first respondent under Section 313 of the Cr.P.C. When a question was put about the Ext. P1 cheque bearing Rs. 2,50,000, he denied the same. The next question was regarding the presentation of the cheque and that it was returned dishonoured, the first respondent replied that he had given a blank cheque. He also admitted the receipt of the notice. To the next question, he said that he had agreed to pay a sum of Rs. 50,000/- with interest and that he had borrowed only Rs. 50,000/-. He also replied that he has no evidence to adduce on his side. It is based on this evidence that the trial court proceeded to acquit the first respondent. According to the learned Magistrate, there is no mention in the complaint about the original transaction, that in the chief affidavit nothing has been stated about the original transaction by which the liability of the accused had arisen. Similarly, it was observed that the date, time and place of execution of cheque are also not mentioned. On that basis, the Magistrate concluded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused on proof of issuance of the cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability. 11. The apex court in M/s. Kumar Exports v. M/s. Sharma Carpets [AIR 2009 SC 1518] has given a vivid picture of presumption in favour of a holder of cheque, shifting the onus etc., thus: "9. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the appellant, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. In a suit to enforce a simple contract, the plaintiff has to aver in his pleading that it was made for good consideration and must substantiate it by evidence. But to this rule, the negotiable instruments are an exception. In a significant departure from the general rule applicable to contracts, Section 118 of the Act provides certain presumptions to be raised. This Section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of presumptions ceases and the fact is presumed, unless and until it is disproved. 10. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Cr.P.C., the respondent admitted having issued the cheque in a signed blank form. Even in such a situation, the liability under Section 138 of the N.I. Act cannot escape him. In Bir Sing v. Mukesh Kumar [AIR 2019 SC 2446], the Hon'ble Supreme Court has held as follows:- "37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, S. 20, S. 87 and S. 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S. 138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence." 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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