TMI Blog2003 (6) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... tions regarding Ext. P3 cheque. The acquittal in respect of Ext. P4 cheque for Rs. 1,25,000/-alone is assailed in this appeal. 2. Cognizance was taken. The accused entered appearance. She denied the offence alleged against her. Thereupon the complainant was directed to adduce evidence in support of her case. She examined herself as PW1 and proved Exts. P1 to P11. on her side the accused examined herself as DW 1 and the Manager of the drawee Bank as DW2. Exts. D1 to 3 were marked. 3. The accused admitted the issuance of Ext. P4 cheque. According to her she had borrowed an amount of Rs. 1,25000/- in connection with her business. Deducting the interest, only an amount of Rs. 1,00,000/- was actually paid to her. The specific understanding was that the principal amount of Rs. 1,25,000/- shall be repaid in 10 installments of Rs. 12,500/- each. The complainant had insisted and the accused had handed over 10 cheques each for Rs. 12,500/- repayable every month. Another cheque for the entire amount of Rs. 1,25,000/- was also handed over as security. Ext. P4 is such cheque allegedly handed over as security. 4. The accused took the stand that the liability has already been discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... miscarriage of justice. 8. A look at the, law in this context will be apposite. In all prosecutions an accused has to be presumed to be innocent until his guilt is proved beyond doubt. A prosecution under Section 138 of the Negotiable Instruments Act is no exception to this general rule. But in a prosecution under section 138 of the N.I. Act the complainant is armed with a presumption under Section 139 of the N.I. Act. On proof of the essential requisites a presumption under Section 139 of the N.I. Act can be drawn. The presumption of innocence against the accused is weakened to this extent. But the presumption under Section 139 of the Act is not an irrefutable presumption of law. It is only a refutable presumption of fact. It is open to the accused to rebut the said presumption. The accused may adduce evidence on his side or rely on the inherent improbabilities of the prosecution case. He may also rely on the circumstances which have been brought out specifically in. the course of examination of prosecution witnesses. The burden on the accused is certainly not as heavy and as onerous as the initial paramount burden on the prosecution to prove the guilt of the accused beyond rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of handing over the 11 cheques, including Ext. P4, was that if the entire amount of Rs. 1,25,000/- were not paid before the date of Ext. P4(11.11.1997) Ext. P4 shall be presented and encashed by the complainant. (f) Notwithstanding the controversy about the actual number of installments paid, it is conceded that the entire amount due under the 10 cheques for Rs. 12,500/- each was not paid before 11.11.1997. (g) Ext. P4 cheque was presented for encashment by the complainant after 11.11.1997, the date which it bore as he was expected and understood to do. (h) It was dishonoured on the ground of insufficiency of funds and the complainant had come to Court with the complaint after observing all statutory formalities. 10. On the above findings of fact, I find absolutely no doubt or hesitation. Those finding of facts are absolutely justified by the materials available on record. 11. The next question is whether Ext. P4 can, in these circumstances, be said to be a cheque issued for the discharge of a legally enforceable debt/liability. There was a liability to pay Rs. 1,25,000/-Parties agreed and understood that this liability must be discharged by making monthly p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accused to contend that the amount due under the cheque has been paid and discharged. The expression the said amount of money and within 15 days of receipt of the said notice cannot lead a court mechanically to the conclusion that any payment made in part or in full prior to the date of receipt of the notice cannot be given credit to. It would be unjust to read proviso (c) to Section 138 in such a mechanical and literal manner. The court was in these circumstances bound to consider the plea of discharge urged by the accused. 13. A plea of discharge must certainly be proved by the person raising such plea-whether the proceedings be civil or criminal. According to the accused she had paid a total amount of Rs. 87,000/- which is equal to seven installments which she had agreed to be paid. According to her four such payments were made by cheques. Three such payments were made by cash. Three payments-a total of Rs. 37,500/- admittedly remained undischarged. We have evidence from Exts. D1 and D2 and the oral evidence of DW2 that three such payments were made by cheques. Those cheques are produced in Exts. D1 and D2 series. There is significant absence of evidence to show that an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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