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TMI Blog2016 (2) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... ffer R.I for 6 months and to pay a fine of Rs. 4,50,000/- under Section 138 of the Negotiable Instruments Act, 1881 in default to suffer further R.I for one month. 2. Heard Mr. D. chakraborty, learned Sr. Counsel assisted by Mr. H. Laskar, learned counsel appearing for the petitioner and Mr. A. Das, learned counsel appearing for the respondent. 3. The case of the complainant respondent, in short compass, is that he has well acquaintance with the convict petitioner, Sri Dipak Kr. Das and there were monitory transactions between them. The convict petitioner in order to discharge his debts and liabilities towards the complainant respondent issued a cheque bearing No. S.B.00/202/968844 dated 17.03.2007 of Rs. 4,50,000/- to be drawn on the SBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/- from the complainant with assurance to repay on demand and if so when? (II) Whether the accused issued a cheque in favour of the complainant for an amount of Rs. 4,50,000/- and whether the cheque was bounced?" 8. PW-1 Shankar Lal Sarkar is the Manager of the State Co-operative Bank, Udaipur who deposed that he issued the letter to the complainant regarding dishonor of the cheque issued by the accused due to insufficiency of fund. He proved his said letter to the complainant as Exbt.1. He also identified the impugned cheque No. S.B.00/202/968844 dated 17.03.2007 and its counter foil, which are marked as Exbt. 2 and 3. He also identified the statement of account marked as Exbt. 4 of the accused person issued by the SBI, Udaipur as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption in favour of the complainant-respondent that the cheque was issued in favour of the complainant-respondent to discharge the debts and other liabilities, but there is no presumption in respect of the amount of liabilities. Therefore, it is obligatory on the part of the complainant respondent to prove the exact amount of discharge for which the cheque was issued. 14. It is also contended by the complainant-respondent in his cross examination that he had no commercial transaction with the convict petitioner. Therefore, it is the complainant respondent who has to say when, where and for what purpose the alleged amount of Rs. 4,50,000/- was paid by the complainant-respondent to the convict petitioner. Moreover, there is no written agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) 1 SCC 327; in Lalit Kumar Sharma and anr v. State of Uttar Pradesh and anr, (2008) 5 SCC 638; and also in Krishna Janardhan Bhat v. Dattatraya G. Hedge, (2008) 4 SCC 54. 17. On the other hand, Mr. Das, the learned counsel for the respondent submits that the learned trial court has rightly passed the order of conviction and sentence as it has been proved that the convict petitioner has issued the aforesaid cheque to discharge his liability to repay the loan taken from the complainant respondent which on submission was dishonored by the Bank with an endorsement "Full covered not received". The above facts have been proved by the evidence produced by the complainant respondent. So a presumption can be drawn in favour of the complainant-res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.--For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability". 19. Mr. Das has also placed reliance on the decisions of the Apex court in K. Bhaskaran v. Sankaran Vaidhyan Balan and anr, AIR 1999 SC 3762 and in K.N. Beena v. Muniyappan and anr, AIR 2001 SC 2895. 20. This court has gone through the judgment of the Apex Court referred to as well as the law reports cited. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the evidence therein, dismissed the petition affirming the order of the courts below. In that case also, the petitioner did not deny that he had issued a cheque of Rs. 5,00,000/- in favour of the complaint-respondent therein and the said cheque was dishonored for insufficiency of the fund in his account. His only plea was that he has taken an amount of Rs. 10,000/- from the complainant respondent and has already paid the entire amount. In the instant case also the petitioner admitted that he had taken a loan of Rs. 5000/- from the complainant-respondent and repaid the same by signing a blank cheque. It is very difficult to accept that contention. Why the petitioner while took a loan of Rs. 5,000/- gave a cheque of Rs. 4,50,000/- ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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