TMI Blog2022 (9) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... was able to rebut the statutory presumption contemplated by Section 139 of the Act . Coming to the facts in the present Revision, the accused herein also failed to give reply to the statutory notice given by the complainant under Section 138 of N.I. Act which would lead to an inference that there was merit in the version of the complainant. If the accused repaid the amounts taken by him as handloans earlier, then why the accused had not demanded the complainant to return the said cheque which the accused had given as security, was not explained by the accused - both the Courts below had placed the burden of proof on the complainant to show that it was the complainant who had to establish that there was a legally enforceable debt, even though the accused had not disputed the issuance of cheque to the complainant. As such, it is considered fit to convict the accused and to sentence him to undergo simple imprisonment till rising of the day and to pay a fine of Rs.2,43,000/- with default sentence of three months simple imprisonment - the concerned Magistrate is directed to secure the presence of the accused by issuing a warrant to undergo the sentence in the open court and to ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le debt. 3.2 The complainant presented the above cheque in the bank for realization. However, the said cheque was returned by the bank with endorsement insufficient funds . 3.3 Thereafter, the complainant issued a legal notice dated 25.08.2014 which was delivered to the accused on 27.08.2014. But, even after receiving the same, the accused neither gave reply nor made arrangements for payment of the amount. 5. Aggrieved thereby, the complainant filed a complaint before the Trial Court. 6. Trial was conducted by the X Special Magistrate, Hyderabad. The accused pleaded not guilty. The complainant was examined as PW.1 and Exs.P.1 to P.5 were marked on his behalf. No evidence was adduced by the accused. 7. On considering the oral and documentary evidence on record, the Trial Court, by order dated 15.06.2015, found the accused not guilty for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, the N.I. Act ) and acquitted him. 8. Aggrieved by the order of acquittal passed by the learned X Special Magistrate, Hyderabad in C.C.No.396 of 2014, dated 15.06.2015, the complainant herein preferred Criminal Appeal, vide Criminal Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1898 properly; in view of presumption under Section 139 of N.I. Act and the law laid down by the Hon ble Apex Court with regard to the existence of legally enforceable debt or liability, there was no necessity to file other supporting documents in respect of debt; both the Courts below had not considered the facts and law in right perspective, and hence, the judgments of the Courts below were liable to be set aside. 12. Learned counsel for the complainant further contended that it was also held in Om Prakash Agarwal vs. Khaja Krishna Prasad LAWS (APH)-2014-6-74 that not giving a reply to the statutory legal notice would strengthen the case of the complainant and improbabilizes the defence and inference could be drawn from the said conduct in not giving reply , when once presumption was mandated under law, both the Courts below went wrong in arriving at a conclusion that the complainant did not prove prima facie case; the observation of the Trial Court that complainant had not filed any Income Tax Returns which mandated payment of more than Rs.20,000/- by way of cheque or Demand Draft was concerned, the same would be considered if the accused would discharge his rebuttal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted in his cross-examination that he was an Advocate by profession and got legal knowledge with regard to the offence under Section 138 of N.I. Act, and that he was an Income Tax assessee, but he did not show the earlier transaction in his Income Tax Returns. He stated that the present transaction was shown in his Income Tax Returns, but, no Income Tax Returns were filed and marked on his behalf. It was a constitutional right, even to the accused to maintain silence. There was no need or necessity for him to go into the witness box and to give his evidence. There was no compulsion to the accused to give his evidence. It was for the complainant to establish his case basing on the preponderance of probabilities. The burden was heavily upon the complainant that he had advanced money to the accused. No Income Tax Returns were filed by the complainant, as such, the Appellate Court held that the complainant miserably failed to establish the offence under Section 138 of N.I. Act; and that the accused was entitled for acquittal. 16. In Goa Plast (Pvt.) Ltd. v. Chico Ursula D Souza (2003) 3 SCC 232 , the Hon ble Apex Court held as under : Chapter XVII containing Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any debt, or other liability. 19. In Rangappa v. Mohan case (1 supra), the Hon ble Apex Court held that ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the N.I. Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act . 20. Further, the Hon ble Apex Court on considering the various judgments rendered by it till then on the sad aspect held at para No.7 as under : 7. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the statutory notice given by the complainant under Section 138 of N.I. Act which would lead to an inference that there was merit in the version of the complainant. If the accused repaid the amounts taken by him as handloans earlier, then why the accused had not demanded the complainant to return the said cheque which the accused had given as security, was not explained by the accused. Further, no notice was issued by the accused for return of the cheque before the complainant filed this present case nor did he choose to give reply to the legal notice issued by the complainant. When the accused admitted his signatures on the cheque, the reverse onus is placed by the statute upon him to rebut the presumption under Section 139 of N.I. Act to show under what circumstances he issued the said cheque to the complainant. 23. A Division Bench of the Hon ble Apex Court in T. Vasanthakumar vs. Vijayakumari LAWS(SC)-2015-4-79 held at para nos.7, 8, 9 and 11 as under : 7. It is of great significance that the cheque has not been disputed nor the signature of the defendant on it. There has been some controversy before us with respect to Section 139 of Negotiable Instruments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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