TMI Blog2021 (7) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... t acceptable. Legally enforceable debt towards the complainant - rebuttal of presumption - HELD THAT:- Admittedly, the said cheque has been returned when presented for its realisation for the reason of insufficiency of funds, after which, a legal notice was issued by the complainant to the accused, demanding the payment of the cheque amount. Admittedly, the cheque amount has not been paid by the accused to the complainant till date. Thus, a presumption about the legally enforceable debt forms in favour of the complainant. However, the said presumption is rebuttable - when the cheque is issued from the personal account by the accused, drawn in favour of the complainant and when the complainant has denied that the accused was not liable to her under the said cheque and also denied the fact that the accused had left the Trust on 05-04-2011 itself, the burden of establishing that, there existed no legally enforceable debt towards the complainant would be upon the accused. However, it is sufficient for the accused to make out a case on preponderance of probabilities in her favour and that she need not have to prove the same beyond reasonable doubts. Even though the complainant&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mary of the case of the complainant in the Trial Court is that, the accused was one of the trustees of a Trust by name 'Karunya Charitable and Medical Services Trust', which was formed for the upliftment of children, youth, woman and senior citizens. The Trust was collecting subscription from the persons who wanted to become members. The complainant was one of the members of the said Trust and also head of one group of about 150 women and she has collected subscriptions from the said persons and paid to the Trust. Under the gratuitous Scheme of the beneficiary of the Trust, it was promised to give 21 cows, 11 sheep, 1 sewing machine to the said members, who are the residents of kallugundi locality and a program was fixed to be held on 25-04-2011 at Kallugundi of Sullia Taluk. But the Trust failed to conduct the said program and did not give the benefits to the beneficiaries, in turn, the accused issued a cheque dated 27-04-2011 for a sum of ₹ 4,07,000/- in favour of the complainant in her personal capacity and drawn on Nanjarayapatana Vyavasaya Seva Sahakara Bank Ltd., Nanjarayapatana, Kodagu. The complainant presented the said cheque on 29-04-2011 and for the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions Judge's Court's records. 8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court. 9. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is: Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court? 10. It is not in dispute that the present petitioner was a trustee of the Karunya Charitable and Medical Services Trust, and that the present respondent, who was the complainant in the Trial Court was a member of the said Trust., According to the complainant, being a leader of a team of members of a place called Kallugundi, she had collected the subscriptions from those members who had remitted the same to the Trust. The said Trust had undertaken to deliver certain numbers of cows, sheep, sewing machine to the said members and a date was also fixed for delivering those articles through a function at Kallugundi. However, the said program was postponed. According to the complainant, who got examined herself as PW-1 in this case, after cancellation of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid address of the addressee. Therefore, the accused now cannot contend that there was no notice issued to her. As such, the contention of the learned counsel for the petitioner/accused that, no statutory notice was issued by the complainant to the accused, is not acceptable. 15. The second and the main point of argument of the learned counsel for the petitioner/accused is that, there was no legally enforceable debt towards the complainant, as such, the cheque at Ex. P-1 cannot be considered as issued towards any legally enforceable debt. 16. Learned counsel for the respondent/complainant in his argument submitted that, the very evidence of the complainant that towards the amount payable to the complainant and the other beneficiaries who were inducted into the Trust under the leadership of the complainant, the cheque was issued, which is further corroborated from the letter at Ex. D-1, which shows that, there existed a legally enforceable debt in favour of the complainant. He further submits that the very issuance of the cheque by the accused in favour of the complainant gives rise to a presumption about the existence of a legally enforceable debt in favour of the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. As such, the complainant had no opportunity to go through the said document and to either admit it or to dispute the same. Still, considering the contention of the accused that she (complainant) had come out of the Trust on 05-04-2011, as mentioned in the said Trust Deed, it can be noticed that even according to the accused, though the cheque at Ex. P-1 is dated 27-04-2011, but it was given to the complainant on 19-01-2011 itself as could be seen from Ex. D-1-letter. Ex. D-1 is a letter of acknowledgment shown to have been submitted to the Trust by the complainant on 19-01-2011, acknowledging the receipt of the cheque at Ex. P-1 with respect to the dischargal of the liability of the Trust towards the complainant and other members said to have been admitted to the membership of the Trust through the complainant. The said document was produced by none else than the accused herself which means the accused has admitted that, the complainant has acknowledged the receipt of the cheque which is at Ex. P-1. Further, it can be seen that, the said cheque is acknowledged by the complainant by taking upon her the responsibility of reaching the benefits to the beneficiaries, which resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity is there towards the complainant, it is not by the accused, but it is by the Trust. Even the said argument of the learned counsel of the petitioner is also not acceptable for the reason that, a perusal of the impugned judgments would go to show that, both the Trial Court as well as the Sessions Judge's Court, after considering the entire evidence placed be both side, both oral and documentary placed before them, in their proper perspective, have arrived at the final finding, holding the accused alone as liable, as such guilty of the offence punishable U/s. 138 of N.I. Act. Further, even though the complainant's main grievance is against the Trust, but according to the complainant, the accused alone was the only active Trustee in the said Trust and that the cheque in question was also given to her by the accused herself, holding herself as the sole responsible person. The said statement made by PW-1 in her examination-in-chief has not been specifically denied or disputed from the accused's side. On the other hand, the very document confronted to PW-1 from the accused's side which is at Ex. P-1 has been given by the Trust to the complainant towards disch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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