TMI Blog2023 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable under Sections 118 and 139 of the Act comes into play, which clearly provides that there is presumption available in favour of the holder of the cheque that same was issued in discharge of the lawful liability. No doubt, aforesaid presumption is rebuttable, but for that purpose, accused is/was under obligation to raise probable defence. The Hon ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, [ 2012 (12) TMI 106 - SUPREME COURT ], has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. If the entire evidence led on record by the complainant is read in its entirety, no illegality and infirmity can be said to have been committed by the courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 138 of the Negotiable Instruments Act (in short the Act ), convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs. 1,20,000/- to the complainant. 2. Precisely, the facts of the case, as emerge from the record are that respondent/complainant lodged complaint under Section 138 of the Act before the learned JMFC, Rajgarh, stating therein that on the request having been made by the accused, he had advanced sum of Rs. 1,00,000/- as friendly loan to the accused, who though had assured to refund the same within six months, but same was not returned within the agreed period. He alleged that subsequently, accused with a view to discharge his liability, issued cheque bearing No. 000084 dated 15.2.2018, amounting to Rs. 1,00,000/-, payable at HDFC Bank Rajgarh, Branch District Sirmaur, H.P., but fact remains that aforesaid cheque on its presentation to the bank concerned, was dishonoured. Since accused failed to make the payment good within the stipulated period despite his having received legal notice issued to him, complainant had no option but to initiate proceedings under Section 138 of the Act in the compete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttering from the complainant. Complainant in his statement recorded under Section 313 Cr.PC though denied the liability, if any, of him to pay the amount, but stated that entire rent qua the shuttering taken by him was paid, but yet complainant failed to return the cheque procured by him as security at the time of hiring of shuttering. Since there is no dispute, if any, with regard to issuance of cheque as well as signature thereupon of petitioner, presumption as available under Sections 118 and 139 of the Act comes into play, which clearly provides that there is presumption available in favour of the holder of the cheque that same was issued in discharge of the lawful liability. No doubt, aforesaid presumption is rebuttable, but for that purpose, accused is/was under obligation to raise probable defence. Probable defence could be raised by the accused by referring to the documents adduced on record by the complainant or by leading some cogent and convincing evidence. However, in the case at hand, accused, despite ample opportunities, failed to raise the probable defence. 8. The Hon ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant. 25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manager, Canara Bank Rajgarh, while deposing as CW1 successfully proved that cheque Ext.CW1/A was presented for encashment on 15.2.2018, and same was forwarded to HDFC Rajgarh Branch on the same day. On 19.2.2018, HDFC Bank returned the cheque to their bank due to insufficient funds in the bank account of the accused. In his cross-examination, he feigned ignorance with regard to the date, on which, cheque was presented in the HDFC Bank, however he self stated that cheque was returned due to insufficient funds. He categorically denied suggestion put to him that cheque Ext.CW1/A was neither presented in their bank, nor their bank forwarded the same to HDFC bank. 12. Santosh Kumar Bhardwaj, Branch Operation Manager, HDFC Bank, while examining himself as CW2, deposed that accused is having a bank account in their bank and Cheque Ext. CW1/A was received in their bank from Canara Bank Rajgarh for clearance, but the same was dishonoured on account of insufficient funds in the account of the accused vide memorandum Ext.CW1/B. 13. If the entire evidence led on record by the complainant is read in its entirety, no illegality and infirmity can be said to have been committed by the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Security cheque is not a statutorily defined expression in the Negotiable Instruments Act, rather same is to be inferred from the pleadings as well as evidence, if any, led on record with regard to issuance of security cheque. The Negotiable Instruments Act does not per se carve out an exception in respect of a security cheque to say that a complaint in respect of such a cheque would not be maintainable as there is a debt existing in respect whereof the cheque in question is issued, same would attract provision of Section 138 of the Act in case of its dishonour. 16. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In this regard, reliance is placed upon the judgment passed by Hon ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 Supreme Court Cases 452, wherein it has been held as under:- In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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