TMI Blog2021 (12) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to lead the evidence to rebut such presumption. The applicant was required to lead evidence that the entire amount due and payable to the complainant was paid. Considering the fact that the applicant-accused has admitted the issuance of the cheque and his signature on the cheque and that cheque in question was issued for security purpose as well as the amount was paid by him. There is a presumption under Section 139 of the N.I.Act that there exists a legally enforceable debt or liability. Of course, such presumption is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, two receipts are produced by the accused applicant which requires to be proved by him with cogent evidence in trial. The story put forward by the applicant-accused that the cheque was given by way of security is not believable at this juncture to rebut the presumption. This application deserves to be dismissed and dismissed. - R/Criminal Misc.Application No. 31154 of 2017 - - - Dated:- 27-7-2021 - Honourable Mr. Justice B.N. Karia For the Applicant(s) : Mr Suresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque. Therefore, no offence u/s. 138 of the Negotiable Instruction Act can be said to have been committed by the present applicant. Hence, the issuance of process for the same deserves to be quashed and set aside Referring documentary list produced on record by the original complainant before the trial, it is submitted that reply of the notice issued by the complainant was given on 22nd August, 2017 at Sr. No.6. However, the complainant, in his chief-examination before the trial Court, has denied of the reply given by the present applicant. That, the original complainant is a lier and suppressed the correct facts before the Court below. That, he has never denied of accepting ₹ 60,000/- under his signature, as per receipt issued by him produced at annexure D , therefore, he is silent on his part. It is further submitted that there is no legal due payable to the respondent No.2 by the applicant. It is further submitted that cheque was issued only for security purpose by the applicant. Therefore, he has requested that there is a clear misuse of process by filing the complaint u/s. 138 of N.I.Act and abuse of process of law. Hence, it was requested by the learned Advocate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficient fund by return memo dated 10th July, 2017. There is correspondence of notice issued by the respondent No.2 dated 2nd August, 2017 and the reply given by the present applicant on 22nd August, 2017. It is contended in the reply of the notice given by the present applicant that ₹ 60,000/- was paid by him under the receipt of the respondent No.2 dated 23rd April, 2017 as well as dated 20th May, 2017. It is also contended that the cheque of ₹ 60,000/- dated 20th April, 2017 was given to the respondent No.2 by way of security. The amount of ₹ 60,000/- was paid in cash by the present applicant to the original complainant and remaining amount of ₹ 5,440,/- was to be adjusted by the complainant. Therefore, there was no due remained to be paid by the present applicant. 8. The aspect of paying amount of ₹ 60,000/- paid to the complainant by the applicant in two installments i.e. 23rd April, 2017 as well as dated 20th May, 2017 would require evidence before the trial Court. At this juncture, this fact is not denied by the original complainant, may be proved or disproved by the either side after recording evidence before the trial Court. In a quashing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further observed that the presumption under Section 139 of the N.I. Act is in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein there is existence of legally enforceable debt or liability can be contested. In Paragraph 27 this Court observed and has held as under: 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendantaccused cannot be expected to discharge an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase until the contrary is proved in Section 118 of the Act and use of the words unless the contrary is proved in Section 139 of the Act read with definitions of may presume and shall presume as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 10. This Court has also considered the view taken in Criminal M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant. Accordingly, this court did not find any merits in this petition, thereofre, the same is dismissed. Ad interim relief stands vacated. Rule nisi discharged with no order as to costs. 11. Coming back to the facts in the present case and considering the fact that the applicant-accused has admitted the issuance of the cheque and his signature on the cheque and that cheque in question was issued for security purpose as well as the amount was paid by him. There is a presumption under Section 139 of the N.I.Act that there exists a legally enforceable debt or liability. Of course, such presumption is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, two receipts are produced by the accused applicant which requires to be proved by him with cogent evidence in trial. The story put forward by the applicant-accused that the cheque was given by way of security is not believable at this juncture to rebut the presumption. 12. In view of the reasons stated above, the prayer made by the applicant to quash and set aside the Criminal Case No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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