TMI Blog2022 (7) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression shall , which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. It has been held by a three-judge bench of the Hon'ble Apex Court in the case of RANGAPPA VERSUS SRI MOHAN [ 2010 (5) TMI 391 - SUPREME COURT ] that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2017 - - - Dated:- 15-7-2022 - HON'BLE SMT. JUSTICE SUNITA YADAV For the Appellant : Rahul Singh Kushwah , Advocate For the Respondents : Surendra Kumar Khare , Advocate JUDGMENT The present appeal is filed against the judgment dated 18.01.2017 passed by Judicial Magistrate First Class, Karera, District Shivpuri in case No. 794/2011, by which the respondent/accused has been acquitted from the charges under Section 138 of Negotiable Instruments Act. 2. For the sake of convenience, the petitioner will be referred as the complainant and the respondent as the accused hereinafter. 3. The facts in brief to decide the appeal are that the complainant filed a complaint under Section 138 of Negotiable Instruments Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the respondent/accused has argued that no case can be made out against the accused as the complainant failed to prove that he provided any money to the accused as a loan. Therefore, learned trial Court has rightly acquitted him from the charges under Section 138 of Negotiable Instruments Act. 7. On perusal of record, it appears that the complainant has examined himself to prove his case as witness No. 1 and the respondent/accused has examined DW-1 Vidhya and DW-2 Rambabu Prajapati in support of his case. 8. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. In the present case, the accused has admitted signature on the cheque in question. As per the scheme of the NI Act once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118 of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability. The combined effect of these tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money transactions with each other; therefore, the accused gave the complainant a cheque bearing No. 30784136344 of State Bank of India Branch Karera. In his examination in chief also the complainant has not stated that the alleged money was given as a loan. Only in cross-examination the complainant uttered a single sentence that he gave the money as a loan. However, the time, date and place of alleged transaction was not mentioned in the notice and complaint. Therefore, mere saying that the money was given as a loan itself is not sufficient to prove that the cheque was given for discharge of any legally enforceable debt or other liability. 13. According to the complainant the huge amount of money allegedly given to the accused was arra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto consideration. 45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption, but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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