TMI Blog2022 (11) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of transaction. It has come in evidence that the accused just signed the cheque and wrote the amount in figures. PW.1 has admitted that accused himself asked him to write the name and amount in figures. If this part of the evidence is examined in the light of the actual defence taken by the accused, it can be said that the cheques might have been issued at the time when the accused purchased the landed property from the father of the complainant - Accused has stated that the sale talks were held in the year 2003 and at that time he issued the cheques without writing the date, name of the drawee and the amount in words. PW.1 has clearly admitted in the cross-examination that the accused issued two blank cheques and asked him to write all the particulars. So if this answer of PW.1 is considered and examined in the background of Ex.D.1 and D.2, it is possible to draw an inference that probably in the year 2003 itself, i.e., in connection with sale transaction accused might have issued the cheques without writing the name of the drawee and the amount in figures. The accused is a bank employee. If really he issued the cheques in order to repay the hand loan, he himself would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the appellant and Sri. H.Pavan Chandra Shetty, learned counsel for the respondent. 5. The complainant stated that accused had obtained hand loan of Rs. 70,000/-from him and he issued the cheques to repay the said amount. When the complainant adduced evidence as PW.1, he reiterated the same. Ex.P.1 and P.2 are the two cheques. Ex.P.4 and 5 are the cheque return memos issued by Vijaya Bank, Mulki Branch stating that the cheques were returned unpaid for two reasons 'insufficient funds' and 'account closed'. Ex.P.6 is the copy of the demand notice. Ex.P.7 is the postal receipt and Ex.P.8 is the postal acknowledgment. 6. The accused does not deny his signature on the cheques and the receipt of the demand notice. It is true that he did not reply to the demand notice. But his defence is three fold, firstly that in the year 2003 he transacted with complainant's father for purchasing a piece of agricultural land in Sy. No. 80 of Mulki village. The sale was actually executed on 19.3.2004. The actual sale consideration was Rs. 70,000/-. The complainant's father issued a receipt on 26.11.2003 acknowledging the receipt of sale consideration of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not disputed. The accused did not reply to the demand notice. For all these reasons, the complainant has been able to prove that the accused issued the cheques for repaying the hand loan. 11. The learned Sessions Judge on the other hand has found that the cheques were issued by way of security in connection with the sale transaction and because of transfer of the accused from Mulki branch of Vijaya Bank to other branch, his bank account came to be closed. Sessions Court has held that merely because accused admitted his signatures on the cheques and he did not reply to the notice, an inference cannot be drawn that the accused issued the cheques for repaying the hand loan. Sessions Judge has noted that neither in the complaint nor in the legal notice, the complainant has stated the date on which he lent money to the accused. Ex.D.1 was confronted to PW.1 in the cross-examination and he admitted it. Therefore the complainant's evidence is rebutted. In this view the judgment of the Magistrate cannot be sustained. 12. Sri. Jeevan K., learned counsel for the appellant stressed the points that the accused did not reply to the demand notice, that he does not dispute the signat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it can be very well said that the Sessions Judge has come to a right conclusion to reverse the judgment of the learned Magistrate. It is no doubt true that the accused does not dispute the signature on the cheques. It is also a fact that accused did not reply to the demand notice issued by the complainant before filing the complaint. For these reasons, no inference can be drawn that the complainant was able to prove that the accused issued the cheques for discharging the hand loan. The burden is on the complainant to prove that he had lent money to the accused. Mere statement in the complaint that the accused had taken hand loan is not sufficient. The complaint has not disclosed the date of transaction. At least he could have mentioned the year in which he lent money to the accused. In the demand notice also, there is no reference to the date of transaction. 15. It has come in evidence that the accused just signed the cheque and wrote the amount in figures. PW.1 has admitted that accused himself asked him to write the name and amount in figures. If this part of the evidence is examined in the light of the actual defence taken by the accused, it can be said that the cheques might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf would have filled up all the particulars in the cheque. So looked in this background certainly a doubt arises in the case of the complainant and there is probability in the defence. 16. In order to attach presumption to the case of the complainant under section 139 of Negotiable Instruments Act, the complainant's case must prima face appear to be believable. There must be clear reference to the transaction giving rise to legally enforceable debt or other liability. If there are innate defects in the facts pleaded by the complainant, presumption cannot be automatically raised. 17. Another ground of defence is worth acceptance. The accused was working in Mulki branch. In the year 2005 as evidenced by Ex.D.3 he was transferred from Mulki to Bondel Branch, Mangalore. Ex.D.4 shows that he was transferred to Kateel branch. That means in the year 2007 he was not working at Mulki. On Ex.P.2, a seal, 'staff' is put, that means when accused was working in Mulki branch, he had a bank account and been issued a cheque book. After his transfer the account came to be closed as is evident from Ex.P.4 and P.5. From this part of the evidence also, it is possible to draw an infer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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