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TMI Blog2023 (6) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... nant's Corporation, namely, M/S Good Luck Finance Corporation, Hire Purchase Financer, 8-B, Nehru Market, Jammu, for purchase of a vehicle (Truck) bearing Registration No. DL1G-3203. The respondent failed to repay the loan amount and as such, issued cheque No. 132481 for an amount of Rs. 1,52,781/- in favour of M/S Good Luck Finance Corporation on 31.01.2007 drawn at Citizens Cooperative Bank Limited, Warehouse, Jammu. The aforesaid 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 guil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of the settled legal position, therefore, needs no interference in appeal and prayed for dismissal of the appeal. 10. Heard learned counsel for the parties and perused the material available on record. 11. There is no dispute with regard to obtaining of loan by the respondent-accused from the appellant-complainant. Even delivery of cheque duly signed by the respondent has been admitted by 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 respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The notice in terms of the provisions was served on the accused; and (5) Despite service of notice neither any payment was made nor other obligations, if any, were complied within 15 days from the date of receipt of notice. 16. In the instant case, issuance of cheque in discharge of legally enforceable debt is admitted by the respondent. The presentation of cheque 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 38 of the judgment is extracted as under: "38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for such amount: Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder." 24. 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. 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 lea ..... 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