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TMI Blog2021 (11) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... ce punishable u/s. 138 of the Negotiable Instruments Act (for short, 'the NI Act'). It was alleged that the accused who is the friend of the complainant borrowed a sum of Rs. 50,000/- on 10/3/2003 promising to repay the said amount within a week and issued Ext. P1 cheque towards the discharge of the said liability, that the cheque on presentation was dishonored for want of sufficient funds, that Ext. P5 notice demanding payment was not heeded to, and, therefore, the accused committed an offence punishable u/s. 138 of the NI Act. 4. PW1 was examined and Exts.P1 to P12 were marked on the side of the complainant. DW1 was examined and Exts.D1 to D4 were marked on the side of the accused. 5. The Court below on appreciation of evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 118 therein and secondly, the presumption that the holder of the cheque receiving the same of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. The presumption under Section 139 is rebuttable in nature. If the basis for drawing the presumption under Section 139 of the Act exists, the Court shall draw presumption under the said Section, in which case, evidential burden will be on the accused to prove that there was no debt or liability. Whether the presumption is rebutted or not, would depend upon the facts and circumstances of each case. of course, the execution and issuance of cheque have to be proved by the complainant to draw presumption under Section 139 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantiate the defence case, the accused himself was examined as DW1 and Exts.D1 to D4 were marked. The oral evidence of PW1 has to be evaluated in the light of the above defence case set up by the accused and the evidence given by the defence to substantiate his defence case. 10. It appears from the averments in the complaint and the chief examination of PW1 that the cheque in question was issued on the date of borrowal. But, in cross-examination, PW1 stated that cheque was issued on 18/3/2003. PW1 stated that the signature in the cheque was put by the accused in his presence, but, he could not say who filled up the entries in the cheque. Even though PW1 claims to be the friend of the accused, he could not say where exactly at Wayanad the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held that when a blank cheque is voluntarily signed and handed over by the accused towards some payment, it would attract presumption u/s. 139 in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In this case, the definite case of the defence is that the cheque in question was issued as a security to another transaction between one Mr. Abdul Salam and Mr. Kalloli Rajan. The defence does not admit that the cheque in question was issued as a security towards the loan transaction between the complainant and the accused. Similarly, the accused does not admit that a signed blank cheque was handed over by him to the complainant. Hence, the dictum laid down in the above two decisions cited by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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