TMI Blog2023 (6) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the N.I. Act, it becomes clear that unless the contrary is proved, it is to be presumed that the holder of the cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. True it is that the presumption contemplated under Section 139 of the Negotiable Instrument Act is rebuttable presumption, however, onus of proving by cogent evidence that cheque was not in discharge of any debt or other liability is on the accused-respondent. The respondent has not taken a plea that he had not issued the cheque rather he had taken a stand it was just a security cheque and that he had repaid the loan and had not raised any subsequent loan. However, during the trial before the Trial Court he could not prove the facts raised by him in his defence as the same were required to be proved by him being onus on him due to presumptions under the Act. So far the issuance of cheque as security cheque is concerned, the same has been authoritatively decided by the Apex Court and also by the High Courts in the judgments referred hereinabove and the same is no defence available to the respondent as an accused - this court is of the opinion that the respondent had fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid cheque was presented by the complainant for clearance through Jammu and Kashmir Bank Limited, Branch Nehru Market, Jammu but the same was dishonored and returned on 11.04.2007 with the memo insufficient funds . Legal notice was sent to the respondent-accused through registered postal service, but the same was returned with the remarks addressee refused redirected to sender . The appellant-complainant contended that despite service of notice, accused failed to make payment, which constrained him to file the complaint. 4. Notice of the complaint was issued to the respondent-accused, who caused his appearance and was examined by the Trial Court, with regard to the accusation, under Section 242 CrPC on 12.11.2007. The respondent-accused pleaded not guilty to all the allegations leveled in the complaint and sought trial. 5. The complainant, besides himself appearing in the witness box, examined Madan Lal Postman and S. Balbinder Singh, Manager, J K Bank Limited Branch Nehru Market in support of his complaint, whereas respondent-accused examined Kudeep Singh, Romesh Kapoor, Vakil Singh and Krishan Lal, as his witnesses in defense. 6. The Trial Court, after appreciating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent. The only defence, as projected by the respondent-accused, before the trial Court was that the respondent-accused had liquidated the loan obtained by him from the appellant-complainant in the year 1997 against which cheque in question was given as security. Therefore, there is no legally enforceable debt or liability. In his defence, the respondent-accused has stated that after re-payment of entire loan amount, he approached the appellant for settlement of account to which complainant did not agree and instead seized the vehicle. The respondent-accused denied the second loan having been obtained by him from the appellant-complainant. The respondent has admitted issuance of cheque and his signatures on the cheque. 12. The complainant in his statement has deposed that the respondent obtained a loan of Rs. 1,52,781/- from the appellant and issued cheque No. 132481 for an amount of Rs. 1,52,781/- drawn at Citizen s Cooperative Bank Branch Warehouse, Jammu. The cheque was presented for clearance but was returned with a memo. As per the complainant, the cheque was issued after negotiation. After dishonor of the cheque, a legal notice was served upon respondent/accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que for clearance through banker and its dishonor is also proved. Service of notice is also not denied. The only defence projected by the respondent is that the loan against which the cheque in question was given as security to the appellant stands liquidated but he has not stated anything about demand to return the cheque and if refused what steps have been taken by him for recovery of the cheque. It has also come in the evidence that the vehicle against which the loan was got by the respondent in the year 1997 from the appellant was refinanced in the year 2001-2002. May be for this reason the respondent has not pressed for return of the cheque and agreed to keep the earlier cheque as security against the second loan also. 17. Hon ble Supreme Court in the case of M/S M.M.T.C. Ltd. V. M/S Medchi Chemicals Pharma (P) Ltd., (2002) 1 SCC 234 has observed as under:- There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r liability by adducing evidence. The Apex Court has further observed in para 42 of the judgment supra, which is applicable to the facts of the present case as under: 42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act. 21. The main thrust of the argument of the learned counsel for the respondent is that the cheque in question in the complaint before the Trial Court was just a security cheque and it does not make the accused liable for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it was just a security cheque and that he had repaid the loan and had not raised any subsequent loan. However, during the trial before the Trial Court he could not prove the facts raised by him in his defence as the same were required to be proved by him being onus on him due to presumptions under the Act. So far the issuance of cheque as security cheque is concerned, the same has been authoritatively decided by the Apex Court and also by the High Courts in the judgments referred hereinabove and the same is no defence available to the respondent as an accused. 25. In view of the settled legal position and having regard to the evidence on record having been carefully examined, this court is of the opinion that the respondent had failed to raise a probably defence regarding existence of a legally enforceable debt or liability by leading cogent evidence. 26. The complainant by leading cogent evidence that the accused had issued a cheque against a liability to the complainant, which on presentation to the bank of the accused was dishonored for insufficient funds and despite issuance of legal notice; accused failed to make the payment, has proved the ingredients of the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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