TMI Blog2022 (9) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... Negotiable Instruments Act, 1881, the complainant is expected to prove the fundamental facts like, issuance of cheque and prima facie evidence to show that the said cheque was issued to discharge an enforceable debt. So, even without adverting to the evidence on the side of the complainant, on the reading of DW-1 testimony, it is seen that the accused admits he had chit transaction with the complainant company - To rebut the presumption of legally enforceable debt, the accused rely upon three documents. But they had not substantiated the defence, contrarily only confirm the case of the complainant. Ex.D1 pass book is in respect of group G2 E1459 GAN ticket 04. The entries indicates that as on 19.05.2010, the accused is liable to pay the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g chit transaction has filed a private complaint under Sections 138 and 142 of Negotiable Instruments Act, 1881 alleging that the respondent subscribed to the chit in a Group and Ticket No.G2E/145G/1 for the amount of Rs.1,00,000/-. The chit commenced on 17.09.2009 and terminated on 17.04.2011. The respondent participated in the chit auction, the prized money of Rs.75,529/- was paid to the respondent on 07.03.2010 through cheque. The same was encashed by the respondent/accused. Though the accused is liable to pay the subscription money for the subsequent month, he defaulted the payment. As on 11.10.2011, a sum of Rs.48,898/- was due and payable. To discharge the said debt, the respondent/accused gave a cheque in favour of the complainant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chit. (e)The complainant not aware of the exact amount due and payable. The cheque admittedly written by the staff of the complainant company and not by the drawer. 6. The learned counsel appearing for the appellant/complainant submitted that the trial Court has miserably failed to consider the fact that the accused has admitted the issuance of cheque as well as his chit transaction with the complainant company. While so, Ex.P9-statement of account and Ex.D2 receipts are relied on by the accused on a conjoint reading with the admission of the accused that he owe money to the complainant company towards the balance prized money clearly prove the cheque is issued for legally enforceable debt and to discharge the said debt, the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to the complainant is highly doubtful and PW-1 neither able to disclose about the date on which the cheque was issued or for what amount the cheque was given. Having admitted that it was the blank cheque given by the accused/respondent, the exact debt recoverable ought to have been disclosed with proper statement of account. In the complaint, there is no evidence to substantiate the debt of Rs.48,898/- payable. To fill up the lacuna, PW-1 was recalled and Ex.P9 was marked. The trial Court has rightly declined to rely Ex.P9, since it is the document which was in the custody of the complainant but not disclosed in the complaint or during the chief examination of PW-1. 9. Heard the learned counsel appearing for the petitioner and lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the money was paid through cheque which he has encashed through his bank. In such circumstances, besides his own admission, if one look at Ex.P9 the monthly ledger extract, the entire transaction between the complainant company and the accused is reflected and liability gets proved. 13. To rebut the presumption of legally enforceable debt, the accused rely upon three documents. But they had not substantiated the defence, contrarily only confirm the case of the complainant. Ex.D1 pass book is in respect of group G2 E1459 GAN ticket 04. The entries indicates that as on 19.05.2010, the accused is liable to pay the amount of Rs.53,058/-. Ex.D2 is the receipt to show that the accused paid a sum of Rs.5,600/- by way of cash. Ex.D3 is the not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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