TMI Blog2023 (11) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... doubts about the existence of a legally enforceable debt or liability. To create such doubt, the accused can rely on the materials submitted by the complainant in order to raise such a defence, and it is conceivable that in some cases, the accused may not need to adduce evidence of his/her own. In the present case, the cheque was not issued by the accused towards the discharge of liability of the debt of Mr Dhaval Bhatt owed by him to the complainant. If the cheque had been issued by Mr Dhaval Bhatt for the outstanding amount of Rs. 10,02,980/-, the accused could have availed the benefit of section 139 of the NI Act. However, in the absence of the assignment of liability of Mr Dhaval Bhatt unto the accused and there being no nexus between the issuance of the said cheque and the liability of the accused to repay the outstanding amount to the complainant, the trial Court rightly concluded that the complainant failed to prove that the dishonoured cheque was issued by the accused for discharge of liability. The trial Court has rightly acquitted the accused for the offence punishable under section 138 of the NI Act - Appeal dismissed. - R. N. LADDHA, J. For the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articulars of the offence were read over and explained to the accused. The accused abjured guilt and claimed trial. 6. During the course of the trial, the learned Magistrate recorded the evidence of Arnab Roy (PW-1), the authorised representative of the complainant, and Kamlesh Singh (PW-2), the erstwhile Assistant Manager of the complainant. Various documents were tendered on behalf of the complainant. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 ( CrPC ) came to be recorded. In his defence, the accused examined a witness, Habib Zaidi (DW-1), the operation Manager of HDFC Bank, Malad Branch, Mumbai. 7. After appraisal of the evidence and perusal of the documents tendered, the learned Magistrate acquitted the accused. Being aggrieved thereby, the complainant filed the present Appeal. 8. I have heard Mr Rishi Ashok, the learned Counsel appearing on behalf of the appellant; Mr Vinay Bhanushali, the learned Counsel appearing on behalf of respondent No. 1; and Mr HJ Dedhia, the learned Counsel appearing on behalf of respondent No. 2-State and perused the impugned judgment, grounds in the appeal memo, evidence and material on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d his banker to refuse its encashment. He further submitted that in the absence of a written agreement amongst Mr Dhaval Bhatt, the accused and the complainant to transfer and assign the liability of Mr Dhaval Bhatt unto the accused, the trial Court rightly found that the said cheque was not issued by the accused to discharge the liability of Mr Dhaval Bhatt which was allegedly assigned to the accused. To buttress his submissions, he relied upon the judgment of the Hon ble Supreme Court in Rangappa v. Sri Mohan (2010) 11 SCC 441. 11. It is not in dispute that the tax invoices (Exh. 12 to Exh. 20) were issued by the complainant on M/s D.B. Diamonds for the sale of jewellery worth Rs. 22,74,240/- to Mr Dhaval Bhatt and that these invoices do not bear the signature of the accused. It is also not disputed that an amount of Rs. 12,71,260/- was paid by Mr Dhaval Bhatt to the complainant towards the total consideration of Rs. 22,74,240/- and an amount of Rs. 10,02,980/- was outstanding. The crux of the dispute between the parties is with regard to the assignment of liability of Mr Dhaval Bhatt unto the accused to pay the complainant the outstanding amount of Rs. 10,02,980/- and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt rightly held that the accused did not take over the liability of Mr Dhaval Bhatt. 15. Coming to the issue of whether Section 139 of the NI Act would aid the complainant in the absence of an instrument of assignment of debt, it would be necessary to reproduce the said section. The section reads as follows : 139. Presumption in favour of holder. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. 16. The record reveals that the liability to pay the outstanding dues of the complainant was on Mr Dhaval Bhatt. He did not assign this liability unto the accused, as evidenced by the non-existence of a written instrument between the parties for such assignment or transfer of debt and the testimony of PW-1. Further, PW-1, in his evidence, admitted that the contents of the blank cheque handed over by Mr Dhaval Bhatt to the complainant were filled not by the accused but by the complainant. The evidence of DW-1 reveals that the accused, using the telebanking services on 4 April 2009, informed his banker to stop the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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