TMI Blog2022 (6) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... d, when DW2 was examined, he had stated that he alongwith complainant came to the house of the present petitioner and the petitioner was not present in the house and in his absence, the complainant took away two blank signed cheques of his brother including the cheque in question from the almirah of his brother i.e. Surender and it is the said cheque which has been misused. It was observed that version given by the DW2 to the effect that theft had been committed from almirah of the house was not mentioned in statement recorded under Section 313 Cr.P.C. nor suggested to CW1 in his cross-examination. The Hon'ble Supreme Court of India in a case titled as BIR SINGH VERSUS MUKESH KUMAR [ 2019 (2) TMI 547 - SUPREME COURT ], had held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 138 of the Act of 1881 within three months from today and in default of payment of compensation, the petitioner was directed to further undergo simple imprisonment for three months. Challenge has also been made to the judgment dated 09.05.2022 passed by the Additional Sessions Judge, Karnal, vide which, the appeal preferred by the present petitioner has been dismissed. Learned counsel for the petitioner has submitted that the petitioner was never in the fruit business and it was his brother-Jitender who was doing the said business. It is further submitted that blank signed cheque of the petitioner has been misused by the complainant and has wrongly instituted complaint under Section 138 of the Act of 1881. This Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce dated 08.06.2017 was served upon the petitioner to make payment of cheque amount within 15 days from receipt of the same but neither the petitioner gave any reply to the legal notice nor paid the amount and accordingly, complaint under Section 138 of the Act of 1881 was filed. It has been noticed in para 5 of the judgment passed by the Appellate Court that complainant had stepped into the witness box as CW1 and had got the cheque duly exhibited as Ex.C2, return memo as Ex.C3, copy of legal notice as Ex.C4, postal receipt as Ex.C5, copy of deposit slip as Ex.C6, copy of account statements as Ex.C7 and Ex.C8. It was observed that the trial Court had convicted the present petitioner under Section 138 of the Act of 1881 after seeing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted to CW1 in his cross-examination. DW2, in his cross-examination, had admitted that the fact that cheque of his brother i.e. petitioner had been stolen, had not been disclosed by him to the petitioner till that date, nor any complaint was made to the police with respect to the said theft. It was also observed that the story of the petitioner that he used to keep blank signed cheques in his almirah in his house or the petitioner had knowledge of the said fact that DW2 gained access to the almirah of the petitioner which was locked and stolen the cheques without any family members of the petitioner noticing the same, does not appear to be probable and the entire story seems to be concocted. The observations made by the Courts below are leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligatory on the Court to raise this presumption. 23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact as held in Hiten P. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract 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 abovesaid case, it has been held that the Revisional Court is not to interfere in the absence of jurisdictional error. In the present case, it is admitted case of the petitioner himself that the signatures on the cheque are his and his only defence to the effect that a blank signed cheque was kept by him has been held to be a concocted defence. Keeping in view the abovesaid facts and circumstances, the present Criminal Revision being sans merit, is accordingly dismissed. Since, the main case has been decided, application bearing CRM-21139-2022 for suspen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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