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Omprakash Agarwal vs Kiran Chaudhary on 5 August, 2016 cites

C.C. Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007

15. The maintainability of the present case having been established, let me now deal with the contentions raised by counsel for the accused to see whether accused has placed enough and cogent material before this court to rebut the said statutory presumption which arose in favour of the complainant. Section 118 of the NI Act inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI CC No. 46606/16 (old No. 251/15)                                                                        page no. 8 /13 Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. The said presumptions are rebuttable in nature. In the present case since the accused has not only admitted issuing the cheque in question to the complainant but also her signature on the cheque in question, the presumption under section 139 of the Negotiable Instrument Act would operate. However, the section merely raises a presumption, and not the existence per-se of a legally recoverable debt. The accused has denied receiving any legal notice from the complainant, although the statutory presumption of delivery of legal notice is in favour of the complainant, in view of the observation in C.C. Alavi Haji v. P. Mohammad (2007) 6 SCC 555. The Hon'ble Apex court, in the present case held that it is no longer pre requisite that service of legal notice has to be proved. Even if the service of legal notice is not proved, then receipt of the summons on the complaint is sufficient to raise the cause of action U/s 138 NI Act in favour of the complainant.
Supreme Court of India Cites 14 - Cited by 4985 - D K Jain - Full Document

I.C.D.S. Ltd vs Beena Shabeer & Anr on 12 August, 2002

18. Thus, in view of the above testimony of the accused there remains no doubt that the accused had issued the cheque in question to the complainant to discharge the liability against the loan of Rs.2,00,000/- advanced by the complainant. The only defence taken by the accused in the present case is that the cheque in question was issued as security against the loan of Rs.2,00,000/- taken by the husband of the accused and that she herself is not liable for the cheque in question. However this submission of the accused does not hold good by reason of the fact that Section 138 CC No. 46606/16 (old No. 251/15)                                                                        page no. 10 /13 of the NI Act provides for issuance of a cheque to another person towards the discharge in whole or in part of any liability. The Hon'ble Apex Court in I.C.D.S. Ltd v. Beena Shabeer & Anr (AIR 2002 SC3014) was pleased to observe as under:
Supreme Court of India Cites 8 - Cited by 199 - U C Banerjee - Full Document

K. Bhaskaran vs Sankaran Vaidhyan Balan And Anr on 29 September, 1999

12. In the case in hand as stated above, the legal demand notice was sent to the accused by post on 05.08.2013. The defence has not challenged the veracity of Internet generated track report which is exhibited as Ex. CW1/5. Accused in her cross examination has admitted that the address mentioned in the legal notice and the complaint is her correct address. As per exhibit CW1/5, the delivery was first attempted upon the accused on 06/08/2013. Thus, when the delivery of legal notice remained unsuccessful in all the attempts then in the opinion of this court the stipulated period of 15 days shall begin to run from 07/08/2013 and the cause of action to file the present complaint accrues on 22/08/13. Also the sender cannot be expected to know the number of delivery attempts the postman would make before sending the undelivered post back to him. He is anticipated to be heedful specially when he is hard-pressed to have his complaint filed within the period of 30 days after complying with all the requirements of the proviso to section 138 NI Act. The complaint in question has been filed on 27/08/2013 and in that case, in light of the above discussion, the argument of the defence counsel does not sustain.
Supreme Court of India Cites 10 - Cited by 3240 - Full Document

M/S Kumar Exports vs M/S Sharma Carpets on 16 December, 2008

Also Hon'ble Supreme Court in Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 held, that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable CC No. 46606/16 (old No. 251/15)                                                                        page no. 12 /13 that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.
Supreme Court of India Cites 12 - Cited by 3169 - J M Panchal - Full Document
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