9911796707
TMI Blog2021 (11) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... raud on him. The said amount of Rs. 2,50,000/- was encashed by the respondent on 24.11.2014. The said amount was collected through the respondent's savings bank Account No.30062030020 maintained in the State Bank of India, Udaipur Branch. On several times, the complainant requested the respondent for repayment of the said loan. Finally, on 26.04.2015, the respondent issued a cheque bearing No.687209 in presence of one Sanjoy Neogi and Amal Das. In the complaint, it has been alleged that 'At the time of issuing the said Cheque the accused person did not write the date of issue of the said cheque and requested the complainant to deposit it as and when the accused person intimate to the complainant to deposit. As per the request of the accused person, the complainant put the date on the cheque on 08.01.2017 and deposited it on 21.03.2017 to State Bank of India, Udaipur Branch through S.B account vide no.11410606413 of the complainant for encasing it. But very unfortunately the bank authority return the said Cheque on 21.03.2017 with a return memo stating that the said cheque vide no.687209 could not encash(sic.) due to fund insufficient and returned the said original cheque along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,50,000/-, which was absolutely a security cheque, with him and did not return the same to the respondent. The respondent has categorically stated that he had paid the loan that he had taken from the complainant and therefore, there was nothing due to be paid by the respondent. 05. The trial judge, having appreciated the evidence that was brought on record has observed in the judgment dated 12.06.2018 that the respondent has produced evidence stating that he has given the cheque as security to the complainant and the same has been misused. The respondent had taken a loan of Rs. 2,50,000/- at 10% monthly interest from the complainant with a condition to return the same within a period of six months. According to the respondent, he has repaid the amount of Rs. 2,50,000/- in two installments by the cheque bearing No.610768 dated 14.02.2015 for an amount of Rs. 60,000/- and by the cheque No.610772 dated 14.03.2015 for an amount of Rs. 2,80,000/- [Exbt.R and Exbt.S respectively]. Both those cheques were encashed by the complainant. 06. CW-01 in his cross-examination has confirmed that as per his entry in the pass book on 14.02.2015 Rs. 60,000/- was debited vide the cheque No.610768 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to believe the same in order to rebut the presumption under Section 139 of the NI Act. 08. Mr. Majumder, learned senior counsel has referred a decision of the apex court in M.S. Narayana Menon alias Mani vs. State of Kerala and Another reported in (2006) 6 SCC 39 where the apex court has having referred to the provisions of Section 118 and Section 139 of the NI Act has restated the law as enunciated by the apex court in Bharat Barrel & Drum Mfg. Co. vs. Amin Chand Payrelal reported in (1999) 3 SCC 35. In Bharat Barrel & Drum Mfg. Co. (supra) it has been observed as follows: "Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned senior counsel has referred a Gauhati High Court decision in Jose Pullan @ Joseph P vs. Uma Jasrasaria [the judgment dated 27.04.2011 delivered in Crl Revn (SH) 33(SH) 2009]. In that case, Gauhati High Court has on a similar issue, observed that the question to be determined in such circumstances is whether the materials available on record are sufficient to hold that the respondent has successfully rebutted the presumption or not. 12. In reply, Mr. R. Datta, learned counsel appearing for the respondent (the accused) has stated that the trial judge has correctly observed that since the complainant failed to give proper explanation in respect of payment of those two cheques [Exbt-10], the version of the respondent is liable to be accepted on the standard of preponderance of probabilities. Mr. Datta, learned counsel has as well relied on Jose Pullan @ Joseph P (supra) and M.S. Narayana Menon alias Mani (supra) to contend that law has been laid down in respect of coming to a finding based on the presumption under Section 118 and Section 139 of the NI Act and rebuttal thereof. In these decisions, it has been enunciated what nature of evidence for purpose of rebuttal is expected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the belongings were being brought from Khowai, the said cheque and agreement paper went untraced and assured to return it just when it would be found. But till date, your client has not returned the cheque and stamp paper of agreement. Instead of returning it, he wrote the dates of present time and took recourse to falsehood for realizing money in an unjust manner and gave the notice. During my state of unemployment, I used to run the business of selling bricks in the market after purchasing bricks from the Tripureswari Bricks Company (TBC), Bampur, Amarpur by depositing money in advance. Till March, 2015 A.D, I had an arrear of Rs. 10,10,000/- (Rupees ten lakh ten thousand) to be realized from the said TBC bricks field. Therefore, the share-holders of the company engaged a new shareholder of the company at a meeting held on 07.03.2015 A.D. Since I a government employee, I proposed to quit the share of the TBC bricks field and your client Shri Raju Saha being highly interested proposed to me for being share- holder of the said company in place of mine. He said that if I made him the share-holder of the said company in place of mine, he would clear the amount of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cash to him. It is not a fact that Balai did not give me bearers cheque to withdraw Rs. 60,000/- and give the cash to him. It is true that on 14.03. 2015 Balai had issued a cheque bearing No.610772 amounting to Rs. 2,80,000/- in my favour. (WV: The said cheque was given as a bearers cheque and I withdrew the said amount and gave it to Balai in cash." But he did not mention why the said amount by two cheques were paid. Payment made by the complainant after encashing those cheques is absurd cannot be believed by any prudent person. 17. DW-1 however has testified supporting version of the respondent. 18. On overall appreciation of the evidence, this court finds no infirmity in the finding returned by the trial judge that if those two cheques were not in discharge of the liability of the accused person of his debt as stated by the accused person [the respondent] then, why those cheques were issued. The complainant did not mention anything about that episode of issuance of two cheques in his complaint petition or during the examination-in-chief. He did not even explain why those two cheques bearing No.610768 and 610772 were given to him by the accused person. His explanation is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
