Indian Kanoon - Search engine for Indian Law

15. To prove his case, the complainant has examined himself as PW-1 and produced 07 documents and same has been marked as Ex.P.1 to P.07. The cheque as per Ex.P.1 and signature thereon as per Ex.P.1(a) Bank memos as per Ex.P.2. Legal Notice as per Ex.P.3. Postal Receipts as per Ex.P.4 and P.5. Postal acknowledgment as per Ex.P.6 and Track Consignment as per Ex.P.7.

16. In the cross-examination of PW-1, he has deposed that he is working in BWSSB. He had Rs.3 to 4 lakhs income per year. Manjula is his mother. He knows the accused from 20 years. The accused and his mother also known to each other. He paid amount to one Nagaveni also. He does not know that Shivaraj, Bhaskar and Jagadish. No reply notice has been served to him. He denied the suggestion that he had received cheques from his mother and misused the same. He also denied the suggestion that C.C.No.25046/2021 accused had borrowed amount from his mother and issued cheques for security purpose.

21. One Sri.Puttadase Gowda has examined as DW-3, but in spite of granting sufficient opportunity also, DW-3 has not tendered himself for cross-examination, hence his evidence has been discarded.

22. Advocate for complainant has argued that complainant has proved his case and accused has fails to rebut the presumption. Till today accused has not lodged any complaint against the complainant. Advocate for accused has argued that there was no transaction between the parties and the complainant has not proved his case. As per complainant accused had borrowed amount of Rs.5,50,000/- and to discharge the same, the accused had issued Ex.P.1 cheque. Here there is no dispute in signature and issuance of cheque but the accused has denied the transaction. The complainant has produced documents and same has been marked as Ex.P.1 to 07. Ex.P.1 cheque, Ex.P.2 memo, Ex.P.3 is a legal notice, Ex.P.5 and P.5 are Postal receipts, Postal acknowledgement as per Ex.P.6 and Track consignment as per Ex.P.07. Admittedly cheque and signature is belongs to accused and the accused has disputed the issuance of cheque. Complaint has been filed within time. cheque is in the hands of the complainant. As per Sec.139 of N.I.Act "Presumes in favor of holder, it shall be presumed unless the contrary is proved, that the holder of cheque received the cheque, of the nature referred to in Sec.138, for the discharge, in whole or in part or any debt or C.C.No.25046/2021 other liability". Here the question arise for consideration is whether the accused has rebutted the presumption or not and is there legally recoverable debt or liability. The accused has an option to rebut the presumption by way of eliciting truth from PW-1 in the cross-examination, by way of entering into witness box and he can utilize materials available on record. In this case the accused has entered into witness box and cross-examined the PW-1 also.

ANNEXURE

1) List of Witnesses examined for complainant:-

PW.1 : Sri.P.C.Chandra.

2) List of documents marked on behalf of complainant: -

      Ex.P.1             :     cheque.
      Ex.P.1(a)          :     Signature of accused,
      Ex.P.2             :     Bank Memo,
      Ex.P.3             :     Legal Notice,
      Ex.P.4 and 5       :     Receipts
      Ex.P.6             :     Postal Acknowledgment.
      Ex.P.7             :     Track Consignment Report.