TMI Blog2022 (1) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... nforceable debt by a specific plea that the cheque which was issued by him towards security and the same was used by the petitioner for submitting this complaint. In such circumstances, in the absence of any specific understanding arrived at between the parties enabling the appellant to collect interest at the rate of 24%, it cannot be concluded that the amount mentioned in Ext. P1 cheque reflects the actual amount of legally enforceable debt. In such circumstances, it cannot be safely concluded that the offence under Section 138 of the Negotiable Instruments Act has been made out. There are no merits in the appeal - appeal dismissed. - Crl. A. No. 944 of 2017 - - - Dated:- 12-1-2022 - Ziyad Rahman A.A., J. For the Appellant : Shiju Varghese and Pramoj Abraham, Advs. For the Respondents : Iype Joseph, Aype Joseph, Advs. and Sudheer Gopalakrishnan, Public Prosecutor ORDER Ziyad Rahman A.A., J. 1. The appellant herein is the complainant in S.T. No. 7148 of 2011 on the file of the Judicial First Class Magistrate Court-II, Ernakulam. The aforesaid complaint was submitted by the complainant against the 1st respondent herein, for the offences punishable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials. In such circumstances, the learned counsel prays for setting aside the impugned judgment and allowing the complaint by imposing proper punishment to the 1st respondent herein. 7. On the other hand, the learned counsel for the 1st respondent would contend that the learned Magistrate passed a reasoned order by specifically referring to all the materials produced before the court. None of the said findings are unsustainable and no interference is warranted. 8. On going through the findings entered into by the learned Magistrate, it can be seen that one of the reasons for dismissing the complaint was that the Power of Attorney which is marked as Ext. P8 was not a proper one. It was also found that PW1, Power of Attorney holder, even though stated that, he was working therein for the past 25 years, was not aware of the transactions of the 1st respondent with the appellant, partnership firm. However, from the perusal of the deposition of PW1, it can be seen that the aforesaid finding is not correct. He denied the suggestion put forward by the learned counsel for the 1st respondent during the course of examination that, he was not having direct knowledge of the said trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 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. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount of ₹ 91,290/- has been added to the arrears of the 1st respondent, as interest at the rate of 24%. However, any of the documents produced by the appellant or the averments in complaint or the evidence of PW1 would not indicate any authority enabling the appellant to collect the interest for the transaction at the rate of 24% per annum. It is a well settled position of law that, once the execution of the cheque is admitted, there is presumption under Section 139 of the Negotiable Instruments Act as to the existence of legally enforceable debt. However, the said presumption is a rebuttable presumption and if the accused is able to show from the evidence that the amount mentioned in the cheque does not reflect the actual amount legally due to the complainant, the said presumption shall stand rebutted. In such event, the burden to establish the existence of a legally enforceable debt shall stand shifted to the complainant. In this case, by virtue of the difference in the amount presumably due to the addition made by the appellant towards interest at the rate of 24%, there is a shifting of burden as mentioned above. This is particularly because, when the appellant is ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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