9911796707
TMI Blog2023 (10) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... the case are that the petitioner had filed a complaint under Section 138 of the Negotiable Instrument Act against the respondent on the ground that the respondent/accused had borrowed money from him to the tune of Rs.5 Lakhs and for repayment of the same, the respondent had issued 3 cheques of Rs.2 Lakhs, 2 Lakhs and 1 Lakh of SBI on 29.11.2017. The appellant presented the said cheques for withdrawal of the amount before the bank, but the same got dishonored due to insufficient funds in the bank account of the respondent, thereafter the appellant intimated the respondent about the same and also sent legal notice as per provision of the NI Act but the respondent failed to repay the amount, as such the complaint was filed by the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumption under Section 139 of N.I. Act and once the accused has admitted signature over the cheque, then the presumption under Section 139 of Negotiable Instruments Act should be drawn against the accused. The learned Trial Court has failed to appreciate that the accused had not produced any evidence in rebuttal. 6. No one appears on behalf of the respondent despite notice being served to him. 7. Heard learned counsel for the appellant and perused the material available on record. 8. Before the learned Trial Court, the appellant examined two witnesses. The appellant Vikas Sharma examined himself as PW-1 and one Manoj Yadav as PW-2. The appellant supported the averments of the complaint in his statement and exhibited cheques vide Ex-P/1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved informing the appellant that both the cheques on being presented to its banker were returned with a note that it could not be honoured because of "insufficient funds". 21. That apart, when the complainant exhibited all these documents in support of his complaints and recorded the statement of three witnesses in support thereof, the appellant has recorded her statement under Section 313 of the Code, but failed to record evidence to disprove or rebut the presumption in support of her defence available under Section 139 of the Act. The statement of the accused recorded under Section 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct for discharge, in whole or in part, or any debt or other liability. In the given set of evidence and the facts and circumstances emerging in the case, the finding recorded by the learned Trial Court is not in accordance with the law, as such the impugned judgment being not sustainable in law is liable to be set aside. 14. In the result, the acquittal appeal is allowed. The impugned judgment passed by the learned Trial Court dated 23.10.2018 is hereby set aside. The respondent/accused is held guilty under Section 138 of the Act and is sentenced to pay a fine of Rs.5 Lakhs to the appellant within 3 months from today and in default thereof to suffer RI for 1 year. The fine amount so deposited by the respondent/accused shall be payable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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