KAMALAMMAL Vs. C K MOHANAN

JUDGEMENT

(1.) Can it be presumed under Section 139 of the Negotiable Instruments Act ('the Act, for short) that the cheque is drawn/executed by the accused for the discharge of a debt or liability What exactly is the 'fact' which can be presumed by the Court under Section 139 of the Act Under what circumstance the presumption under Section 139 can be drawn What are the basic requirements for drawing the presumption under Section 139 of the Act On whom does the burden lie to establish those pre-requisites These are some of the important questions which 1 would ponder upon, for the purpose of disposal of this appeal.

(2.) A complaint was filed by the complainant-appellant through P.W. 1, the power-of-attorney holder against the first respondent alleging offence under Section 138 of the Negotiable Instruments Act ('the Act', for short). As per the allegations in the complaint, complainant and accused are friends and distant relatives. The accused allegedly borrowed a sum of Rs. 2,00,000/- from the complainant at P.W. 1's house, agreeing to repay the amount with interest in three months. But, he failed to do so. Hence, on repeated demands, Ex. P2 was issued by him for discharge of the debt from the house of P.W. 1 But, the cheque, on presentation to the bank, was returned unpaid for "insufficient funds" along with memo, Exhibit P3. A lawyer notice (the copy is Exhibit P5) was sent to the accused. Still, he did not repay the amount, and hence, after complying with the legal formalities, a complaint was filed against him.

(3.) To prove the complaint, P.Ws. 1 to 3 were examined, Exhibits P1 to P8 and Exhibit X1 were marked. The accused did not adduce any oral evidence, but marked Exhibits D1 and D2. According to accused, he never borrowed any amount from the complaint nor did he issue any cheque to the complainant. He does not even know the complainant. This case is falsely foisted against him by the power-of-attorney holder of the complainant who is on inimical terms with him, on account of another transaction.