TMI Blog2015 (2) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the details in the cheque were recorded by the accused. In the case of Avon Organics Ltd. [ 2003 (7) TMI 745 - ANDHRA HIGH COURT] admittedly, the accused had issued a blank cheque without mentioning the date and amount to the appellant. Therefore, there was absolutely no dispute that a blank cheque was given by the accused to the complainant. The High Court held that filling up the amount portion in words and figures and put date of his own choice by the complainant amounts to alteration and such alteration cannot be done without the consent of the accused. The above judgment is not applicable to the present case. In the case of HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE [ 2001 (7) TMI 1172 - SUPREME COURT] , the Apex Court has held that it is obligatory upon the Court in terms of Sections 138 and 139 of the N.I. Act, to raise the presumption in every case where the factual basis of the raising of presumption has been established. Thus, it can be said that once the execution of the cheque was admitted by the accused, it was for him to first rebut the presumption arising out of Section 139 of the N.I. Act. It was for him to prove that the contents of the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Co-operative Bank of Goa Ltd., Sankhali Branch. By letter dated 31/07/2007, accompanied with a memorandum of Development Credit Bank Ltd., Panaji Branch dated 30/07/2007, the complainant was informed that the said cheque was dishonoured for reason funds insufficient . The complainant, thereafter, telephonically informed the accused that the cheque was dishonoured, but the accused did not listen nor he did make any efforts to pay to the complainant the said amount. Thereafter, the complainant, through her Advocate, issued a legal notice dated 14/08/2007 by registered post A.D. to the accused. The said notice was duly received by the accused, but the accused neither replied to the same nor complied with the same. Hence, the complaint. 7. The complainant examined herself before the learned Chief Judicial Magistrate (C.J.M.). She produced the cheque, cheque return memo and legal notice along with A.D. Card. The statement of the accused under Section 313 of Criminal Procedure Code (Cr.P.C.) was recorded by the learned C.J.M. The accused did not examine any witness in defence. 8. Upon consideration of the entire material on record and upon the learned C.J.M. held that the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry notice to the accused which was received by the accused, but no reply was sent by him. He further submitted that the accused did not produce any evidence at all to rebut the presumption arising out of Sections 118 an 139 of the N.I. Act. Learned Counsel further submitted that there are concurrent findings of the Lower Courts and no jurisdictional error has been shown in the said judgment and order. No interference with the said judgment is called for. He urged that the revision application deserves to be dismissed and, therefore, the same be dismissed. 11. I have gone through the material on record. I have considered the arguments advanced by the learned Counsel for the parties. I have also considered the judgments, which have been relied upon. 12. Admittedly, the cheque has been signed by the accused. The complainant had sent statutory notice dated 14/08/2007 to the accused wherein it was specifically mentioned that the accused had borrowed the said amount of ₹ 22,500/- and towards the repayment of the said amount, had issued the said cheque for the amount of ₹ 22,500/-. The accused was called upon to pay the cheque amount within the period of 15 days from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a debt or liability and said presumption could be rebutted by the accused by proving the contrary. In paragraph 7, the Apex Court has observed thus:- In this case admittedly the 1st Respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21st May, 1993 were sufficient to shift the burden of proof onto the Appellant/Complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st Respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st Respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1st Respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction. 17. From the above, it can be said that once the execution of the cheque was admitted by the accused, it was for him to first rebut the presumption arising out of Section 139 of the N.I. Act. It was for hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to establish the date of extending the loan. Mainly, relying upon the judgment of this Court in the case of Sanjay Mishra Vs. K. K. , reported in 2009 Cri. L. J. 3777, since the amount advanced by the complainant was unaccounted for and not disclosed in the Income Tax Returns, it was held that the complainant had failed to prove that the disputed cheques were issued towards legally enforceable debt. In my view, merely because the amount of hand loan was given in cash, it cannot be said that the same was unaccounted cash and hence, Section 138 of the N.I. Act was not applicable. In the present case, there is nothing on record to prove that the complainant had not included the transaction in the Income Tax Returns, etc. There is absolutely no evidence to prove that the cash was unaccounted for. In such circumstances, the judgment in the case of Sanjay Mishra (supra), is not applicable. Even otherwise the observations in the case of Sanjay Mishra (supra) with regard to unaccounted cash are based on the judgment of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde reported in [2008 (4) SCC 54] in which case, it was otherwise held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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