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TMI Blog2021 (12) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... tition are that a complaint under Section 138 of the Negotiable Instruments Act, 1881 was instituted by the respondent - Manisha Chaudhary against the petitioner alleging therein that the petitioner had taken an amount of Rs. 8 lakhs from complainant's husband as friendly loan on 15.10.2011. The complainant's husband expired on 15.12.2013. Subsequently, the petitioner in order to repay the said loan issued a Cheque bearing No. 325261 dated 31.03.2014 drawn on IndusInd Bank Limited in favour of the complainant. However, upon presentation of the said cheque by the complainant for its encashment, the same was dishonoured with the remarks 'Fund Insufficient', as conveyed to the complainant vide memo dated 25.04.2014. It is the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l revision. 6. Learned counsel for the petitioner has submitted that the impugned judgments suffer from grave infirmities and cannot sustain and that it cannot be said that there was any legally enforceable liability upon the petitioner to pay the amount in question to the complainant. Learned counsel has submitted that the complainant, in any case, admits that it is her husband, who had admittedly advanced the alleged loan in question and since the husband during his life-time had never made any demand for repayment of the same, it is evident that the complainant has come out with false allegations. Learned counsel for the petitioner has further submitted that there is no writing or document in respect of the alleged loan transaction betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Shri Parveen Chaudhary, who had advanced the loan in question, was his heir and as such, would step into the shoes of her late husband as far as the liability of the petitioner qua complainant's husband, is concerned. Learned counsel has further submitted that since the signatures on the cheque in question are not disputed by the petitioner, therefore, a presumption in terms of Section 139 of the Act can safely be drawn against him and in the absence of any evidence to rebut the same, the petitioner who had issued a cheque for repayment of the loan in question, which has been dishonoured, has rightly been found guilty by the trial Court and as upheld by the lower Appellate Court. 8. I have considered rival submissions addressed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The facts of the present case do make out for drawing a presumption as regards the existence of a legal liability in terms of Section 139 of the Act particularly when there is nothing on record to rebut the same. Section 139 of the Act reads as under: "139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability." 11. A perusal of the aforesaid Section reveals that there is a mandate of presumption of existence of liability and upon proof of issuance of cheque the onus shifts to the accused/petitioner to rebut the presumption that the cheque was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act held as follows: "16. It is well settled that the proceedings under Section 138 of the Act are quasi-criminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the Act." 17 to 21 x x x 22. The judgment on which learned counsel for the appellant has placed reliance i.e. K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258 may not be of any assistance for the reason that in the case dealing under Section 138 of the Act, the prosecution has to prove the case and these cases being quasi-criminal in nature are to be proved on the basis of the principles of "preponderance of probabilities", and not on the principles as being examined in the criminal case to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes 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 Section 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." 15. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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