Discharge of Burden under Section 139 by Accused in cases of Cheque-dishonour under Negotiable Instruments Act, 1881

Discharge of Burden under Section 139 by Accused in cases of Cheque-dishonour under Negotiable Instruments Act, 1881 

Section 139 - Presumptions - Rebuttal of Presumption - "Accounts Closed" - "A" had issued cheque which when presented were returned with remarks "Accounts closed" - In this case, accused ("A") has specifically taken a defence that he was not in Coimbatore on 01.12.2005, the date on which, he is alleged to have borrowed Rs.8,50,000/- from the complainant ("C") and that, he was in Mumbai from 26.11.2005 to 04.12.2005  - "A" also marked statements which showed that another person "D" was withdrawing money from A's account so he closed his account - "C" admitted that C knows "D" - Held, fact that "C" knew "D" in certain set of facts would probabilise the case of "A" that "C" and "D" were acting in tandem with each other -  "C" did not obtained any document from "A" while giving a loan amount of Rs. 8.5 lacs - Held, that an amount of Rs. 8.5 lacs as loan is considered huge - ITR of "C" was also seen which showed an income of less than Rs. 8.5 lacs - Held, that complainant's statements in cross-examination can become a source of defence for accused -  Held, there appears to be some force in the submission of  the accused "A" - "C" is not a financier. He has stated that he is a dealer in waste cotton -  "C" did not obtain any document like promissory note etc. from "A" , when he gave the hand loan of Rs.8,50,000/- on 01.12.2005 - Held, a mere statement in the income tax return that there are sundry debts for Rs.10 lacs without supporting evidence, will not be accepted by the income tax officer. The income tax officer will insist the assessee to show some proof to justify the debts.

"C" had not obtained any document from "A". In the absence of materials to establish the debt, the mere statement of "C" that he has sundry debts for Rs.10,00,000/- in the income tax return, cannot lead to the inference that it included the debt of Rs.8,50,000/- allegedly due from "A"  - The theory of "C" that a huge loan of Rs.8,50,000/- was given to a native of another State, without any security on 01.12.2005 and interest free and that, on the same day, the impugned cheque for the said amount was given, appears little unbelievable - The provisions of Section 138 of the NI Act will stand attracted, even in a case where the cheque is returned on the ground “account closed” - Where the accused has not denied his signature in the cheque then the presumptions under Sections 118 and 113 of the NI Act will come to the aid of the complainant - Held, accused has discharged the burden under Section 139 of the NI Act satisfactorily and the two Courts below have failed to appreciate the evidence on record in the proper perspective - Conviction of accused "A" found improper - Ajay Kaushik v. R. Sasikumar [2020] GCtR 1098 (Madras)