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2014 DIGILAW 4620 (MAD)

S. Duraisamy v. R. Shanmugam

2014-12-18

R.S.RAMANATHAN

body2014
JUDGMENT R.S. RAMANATHAN, J. 1. The complainant in C.C. No. 192 of 2005 on the file of the Judicial Magistrate – V, Coimbatore is the appellant. The appellant filed the above complaint under Section 138 of the Negotiable Instruments Act against the respondent and the learned Judicial Magistrate dismissed the complaint and acquitted the respondent and aggrieved by the same, this Appeal is filed. 2. The case of the appellant/complainant is that the respondent was running a chit fund and he was a member and the respondent was having money transaction with him and in July 2003, the respondent borrowed a sum of Rs. 2,00,000/- and on 1.9.2003, another sum of Rs. 2,00,000/- from him and agreed to repay the said amount with interest at the rate of Rs. 2/- per month and was paying interest for some time and thereafter neither repaid the principal nor the interest and after demand, he issued four post-dated cheques each for Rs. 1,00,000/- and 2 chques were drawn on State Bank of India and 2 cheques were drawn on Indian Overseas Bank. When these two cheques were presented for collection, all the four cheques were returned with an endorsement insufficient funds and thereafter, notice was issued on 4.11.2004 and the notice was returned as refused and therefore, the complaint was filed. 3. The cheques were marked as Exs.P.1 to P.4, returned memo as Exs.P.5 to 8, debit advises were marked as Exs.P.9 and 10 and the notice was marked as Ex.P.11 and returned cover was marked as Ex.P.12. The complainant examined himself as PW.1 and the respondent examined 4 witnesses and also gave statement. 4. Before the trial Court, the respondent pleaded discharge of the amount payable by him by marking Ex.D.3 and to prove the discharge, he examined DW.3 and DW.4 and the trial Court believed the evidence of DW.3 and DW.4 and held that through Ex.D.3 and evidence of DW.3 and DW.4, the respondent proved that the amount was discharged and therefore, the respondent is liable to be acquitted and acquitted the respondent. 5. 5. It is submitted by the learned Senior Counsel for the appellant that the respondent admitted the issuance of 4 chques for the amount borrowed by him and he pleaded discharge through Ex.D.3 and DW.3 and DW.4 and in Ex.D.3, the signature is admitted by the appellant but the appellant denied the contents and DW.3 and DW.4 are not the residents of Coimbatore or persons known to the respondent and the presence of DW.3 and DW.4 on the payment date for having witnessed the repayment of Rs. 4,48,000/- by the respondent also appears to be doubtful and Ex.D.3 also not admissible in evidence as it was not duly stamped. Therefore, the trial Court ought not to have relied upon Ex.D.3 and ought to have eschewed the said document. He further contended that it the instrument is not duly stamped, it cannot be received in evidence and relied upon the judgments reported in Yasodammal vs. Janaki Ammal, 81 L.W. 2 and Hindustan Steel Ltd. vs. Messers Dilip Construction Company, 1969 (1) SCC 597 , in support of his contention. 6. He further submitted that notice was properly issued to the correct address of the respondent and under Section 27 of the General Clauses Act, presumption can be drawn when the notice was sent to correct address and there was sufficient compliance of section 138 of the N.I. Act. Therefore, the respondent was aware of the notice and deliberately, he did not send any reply. The learned Senior Counsel also relied upon the judgments reported in C.C. Alavi Haji vs. Palapetty Muhammed and Another, (2007) 6 SCC 555 and Hiten P. Dalal vs. Bratindranath Banerjee, 2001 SCC (Cri) 960. 7. Per contra, the learned counsel for the respondent submitted that the respondent not only rebutted the presumption but also proved through Ex.D.3 and DW.3 and DW.4 that the liability was discharged and the appellant has also executed receipt Ex.D.3 for having received Rs. 4,48,000/- and the signature in Ex.D.3 was also admitted by the appellant and the execution of Ex.D.3 was also proved through the witnesses DW.3 and DW.4. In such circumstances, it is for the appellant to prove that Ex.D.3 was obtained by force or by practicing fraud, but nothing was pleaded and no cross-examination was effectively done on the evidence of DW.3 and DW.4. In such circumstances, it is for the appellant to prove that Ex.D.3 was obtained by force or by practicing fraud, but nothing was pleaded and no cross-examination was effectively done on the evidence of DW.3 and DW.4. Therefore, having regard to Ex.D.3, evidence of DW.3 and DW.4, the trial Court rightly held that the respondent discharged liability and no amount was payable by the respondent. He also relied upon the judgment of the Hon'ble Supreme Court reported in Vijay vs. Laxman & Another, (2013) 3 SCC 86 , in support of his contention. 8. On the basis of the above submissions, we will have to see whether the respondent rebutted the presumption through Ex.D.3 also and the evidence of DW.3 and DW.4. 9. In this case, having regard to the admission by the respondent that he repaid the amount with interest there is no need for the appellant to prove that the cheque was issued for consideration already received. It is admitted by the respondent that he received Rs. 4,00,000/- and towards the discharge of Rs. 4,00,000/- he issued 4 cheques. Though it is contended by the respondent that he issued 4 chques without filling the date and the amount and the payee's name, he admitted that he owed Rs. 2,00,000/- to the appellant and Rs. 2,00,000/- to the appellant's wife and the cheques were issued in the year 1995 or 1998 and the transaction between him and the appellant started from those years and on 18.11.2003, when the interest for a period of one year was due, in the presence of DW.3 and DW.4, he paid Rs. 4,48,000 and receipt was written by DW.3 and signed by the appellant and that was spoken to by DW.3 and DW.4 towards discharging the loan. 10. Therefore, we will have to see whether the respondent rebutted the presumption or proved the discharge of the loan. 11. Before going into the facts of the case, let me analyse the law of presumption under Sections 118 and 139 of the Negotiable Instruments Act. (i) In Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Payrelal, AIR 1999 SC 1008 , it has been held as follows:- “12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard.” (ii) In Hiten P. Dalal vs. Bratindranath Banerjee, 2001 SCC (Cri) 960, it has been held as follows:- “20. The presumption which arises under Section 138 provides more specifically that where any cheque drawn by a person on an account for payment of any amount of money for the discharge in whole or in part of any debt or other liability, is returned by the drawee bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque, such persons shall be deemed to have committed an offence and shall be punished with imprisonment for a term which may extend to twice the amount of the cheque, or with both. The nature of the presumption under Section 138 is subject to the three conditions specified relating to presentation, giving of the notice and the non payment after receipt of notice by the drawer of the cheque. All three conditions have not been denied in this case. 21. The appellant's submission that the cheques were not drawn for the discharge in whole or in part of any debt or other liability is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that 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. The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 22. The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 22. Because both Sections 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, AIR 1958 SC 61 , it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man. (iii) In the judgment reported in 2001 SCC (Cri) 960, the Hon'ble Supreme Court relied upon the judgment reported in State of Madras vs. A. Vaidyanatha Iyer, AIR 1958 SC 61 . In the aforesaid judgment, the Hon'ble Supreme Court, while interpreting the words, shall presume and may presume as found in the Evidence Act, held that the presumption of law cannot be successfully rebutted by merely raising probability however reasonable when the actual fact is the reverse of the fact which is presumed. Something more than raising a reasonable probability is required for rebutting the presumption of law. This was approved by the Constitution Bench in the judgment reported in Dhanvantrai Balwantrai Desai vs. State of Maharashtra, AIR 1964 SC 575 , wherein it is held as follows:- “13. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless the contrary is proved which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.” 12. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.” 12. In the judgment reported in 2001 SCC (Cri) 960 supra, the Hon'ble Supreme Court relied upon the judgment reported in State of Madras vs. A. Vaidyanatha Iyer, AIR 1958 SC 61 , held that the presumption of law is distinguished from presumption of fact and the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the evidence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man. It is also held in that case that to disprove the presumption, the defence has to bring on record such facts and circumstances upon consideration on it, the court may either believe that consideration did not exist or its existence was not probable or its non-existence was so probable that the prudent man would in the circumstances of the case act upon the plea that it does not exist. Therefore, the rebuttal presumption is only in respect of non-existence of consideration or the consideration did not exist and the non-existence of consideration was so probable that having regard to the particular case, the prudent man would come to the conclusion that it does not exist. 13. In the judgment reported in (2013) 3 SCC 86 supra, the Hon'ble Supreme Court also relied upon the judgment reported in M.S. Narayana Menon vs. State of Kerala, (2006) 6 SCC 39 , wherein the Supreme Court held that the presumption under Section 118 and 139 of the N.I. Act is rebuttal and the standard for such rebuttal is preponderance of probability and not the proof prove beyond reasonable doubt and insofar as the accused is concerned, mere preponderance of probability is sufficient to discharge the presumption. 14. Under Sections 118 and 139 of the N.I. Act, a presumption can be drawn when the instrument was issued that it was towards consideration. 14. Under Sections 118 and 139 of the N.I. Act, a presumption can be drawn when the instrument was issued that it was towards consideration. Therefore, when the issuance of cheque is admitted, the presumption can be drawn in favour of the payee that the drawer issued a cheque for valid consideration and thereafter, the drawer has to rebut the presumption by proving that there was no consideration for issuance of cheque and while proving that there was no consideration for the issuance of cheque the drawer has to make out a probable defence and in such circumstances, the probabilities will be taken into consideration. Having regard to the facts of the case, the Court can say that the burden once again shifts on to the payee. However, the position will be different when the drawer admits the liability to the payee, admits issuance of cheques and also pleads that the loan amount has been discharged. 15. According to me, when the drawer takes up the plea that the amount due under the cheques was discharged, he has to prove the same as fact and he cannot rely upon probabilities. He has to plead and prove that the amount was discharged and for that purpose, he cannot rely upon the probabilities as he is not rebutting the presumption regarding consideration but giving evidence towards the discharge. 16. In this case, as stated supra, the respondent admitted the transaction between him and the appellant and he also admitted that he owed Rs. 2,00,000/- to the appellant and Rs. 2,00,000/- to the appellant's wife and had paid interest upto one year prior to execution of Ex.D.3 and on 18.11.2003, along with DW.3 and DW.4, he went to the shop of the respondent and in their presence, he paid Rs. 4,48,000/- out of which, Rs. 48,000/-represents interest for one year at the rate of 12% per annum. In respect of the principal amount of Rs. 4,00,000/- the appellant issued a receipt written by DW.3 and signed by the appellant and therefore, the amount was discharged. Can such discharge be believed having regard to the facts of the case? 17. According to me, the evidence adduced by the respondent and Ex.D.3 will not prove that the amount was discharged. 4,00,000/- the appellant issued a receipt written by DW.3 and signed by the appellant and therefore, the amount was discharged. Can such discharge be believed having regard to the facts of the case? 17. According to me, the evidence adduced by the respondent and Ex.D.3 will not prove that the amount was discharged. While cross-examining PW.1, no suggestion or question was put to PW.1 that the respondent was having financial transaction with PW.1 from 1995 ownards and towards the said transaction, in the year 1995 or 1998, he issued 4 blank cheques without filling the date, name of the payee and the amount and the only suggestion put to PW.1 was that the amount borrowed by the respondent was repaid as per Ex.D.3. On the other hand, he gave statement wherein he has admitted that he was having financial transaction with the appellant from the year 1995 and in the year 1998, he obtained 2 blank cheques drawn on State Bank of India and 2 cheques drawn on Indian Overseas Bank and as on 2002, he owed a sum of Rs. 2,00,000/- to the appellant, he also owed Rs. 2,00,000/- to the appellant's wife and the payment made by the appellant's wife was not known to the appellant and on coming to know that without his knowledge his wife advanced Rs. 2,00,000/- to the respondent, the appellant got angry with him and demanded Rs. 4,00,000/- from the respondent and therefore, on 10.11.2003 along with DW.3 and DW.4, he went to the appellant's shop and settled the account and paid Rs. 4,48,000/- and on that date, the appellant was not in a position to return the cheques and therefore, it was mentioned in Ex.D.3 that the cheques would be returned later. He also further stated that in the year 1995, he borrowed Rs. 2,00,000/- from the appellant and without specifying the date month or year, he admitted the receipt of Rs. 2,00,000/- from the appellant's wife and he has no accounts for payment of interest for those Rs. 4,00,000/- from 1995 to 2002. It is his further admission in the statement given before the Court that in the year 1995, he issued four cheques to the appellant as security for Rs. 2,00,000/- received from the appellant and he has not issued any cheques for Rs. 2,00,000/- received from the appellant's wife. 4,00,000/- from 1995 to 2002. It is his further admission in the statement given before the Court that in the year 1995, he issued four cheques to the appellant as security for Rs. 2,00,000/- received from the appellant and he has not issued any cheques for Rs. 2,00,000/- received from the appellant's wife. On 10.11.2003, he repaid the entire amount with interest as evidenced by Ex.D3. He further stated that the appellant's wife advanced Rs. 2,00,000/- in the year 1998 and he also did not receive any receipt from the wife of the appellant for having paid interest to her and till 2003, there was no dispute or misunderstanding between him and the appellant or appellant's wife regarding money transaction and in 2002, the appellant demanded the amount and on 10.11.2003, he repaid the amount in the presence of witnesses. Therefore, it is seen from the statement of the accused/respondent that he was having transaction from the year 1995 and the cheques were given only to the appellant for repayment of Rs. 2,00,000/- and he had separate dealings with the appellant's wife and he owed Rs. 2,00,000/- to her and the appellant on coming to know of the same, demanded Rs. 4,00,000/- and that was discharged through Ex.D.3. These aspects were not put to PW.1 while he was cross-examined by the appellant. If really, the respondent had dealings with the appellant and his wife and owed Rs. 2,00,000/- to each of them and repaid interest till November 2002, he would have obtained receipt for the payment of interest. Having regard to Ex.D.3, it is specifically stated that towards the amount payable to the appellant, the sum of Rs. 4,48,000/- was paid and there was no whisper regarding the amount payable to the appellant's wife. Further, according to the respondent, the cheques were issued in the year 1995 or 1998 and he was not maintaining any chit to remember the number of cheques issued to the appellant towards security. Nevertheless, in Ex.D.3, the numbers and the banks which issued cheques were mentioned and even after 10.11.2003, no attempt was made by the respondent to claim that the cheque from the appellant and no notice was issued by the respondent to the appellant demanding to return the cheques as the amounts were repaid. 18. Nevertheless, in Ex.D.3, the numbers and the banks which issued cheques were mentioned and even after 10.11.2003, no attempt was made by the respondent to claim that the cheque from the appellant and no notice was issued by the respondent to the appellant demanding to return the cheques as the amounts were repaid. 18. Further, the trial Court failed to appreciate the contradictions in the statement of the respondent even before the trial Court and also in the cross-examination of PW.1. While examining PW.1, it was suggested that the respondent borrowed the amount in 2002 and that was discharged on 10.11.2003. It was also suggested that the respondent gave the cheque in the year 2002 and the respondent got the cheque from the bank in 2001 and gave it to the complainant in the year 2002 and he discharged the loan received from the appellant in the year 2002. Therefore, from the suggestion put to PW.1 by the respondent, the case put forward by the respondent was that he availed loan in the year 2002 and the cheque was also given in the year 2002. This is contrary to the statement given by the respondent before the trial Court wherein he categorically admitted that he received the amount of Rs. 2,00,000/- in the year 1998 and gave four cheques in the year 1998 itself. It is further reiterated that in the year 1995, he received Rs. 2,00,000/- from the appellant and Rs. 2,00,000/- from the appellant's wife. Therefore, the case of the respondent as stated in the statement given before the Court below was contrary to the case suggested to PW.1 along with cross-examination of PW.1. Further, DW.3 and DW.4 did not state that the cheque numbers mentioned in Ex.D.1 and D.3 were either given by the appellant or by the respondent. Further, it is not the case of the respondent while giving statement before the trial court that he noted the cheque numbers given to the appellant in the year 1998 and without chit was taken by him while repaying the sum of Rs. 4,48,000/- on 10.11.2003 and from that chit, the numbers were mentioned in Exs.D.1 and D3. Further, it is not the case of the respondent while giving statement before the trial court that he noted the cheque numbers given to the appellant in the year 1998 and without chit was taken by him while repaying the sum of Rs. 4,48,000/- on 10.11.2003 and from that chit, the numbers were mentioned in Exs.D.1 and D3. Therefore, it is a mystery how the witness DW.3 was able to mention the number of cheques in Ex.D1 and D3 which were alleged to have been given in the year 1998 when neither the appellant nor the respondent furnished the numbers of cheque while writing Exs.D1 and D3 by DW.3. 19. These circumstances would disprove the case of the respondent that the amount was repaid. According to me, the respondent was not consistent in his case of discharge. Further, the evidence of DW.3 and DW.4 cannot also be believed. DW.3 is the resident of Sathy Road, S.K. Kulam and DW.4 is the resident of Karnataka. In Ex.D.3, it is stated the respondent received a sum of Rs. 4,00,000/- as loan from the appellant and the interest was calculated from the year 2002 till the issuance of receipt and the sum of Rs. 4,48,000/- was paid in cash in the presence of witnesses. As stated supra, the specific admission of the respondent was that he received Rs. 2,00,000/- from the appellant and Rs. 2,00,000/- from his wife and in Ex.D.3, he admitted that he received Rs. 4,00,000/-from the appellant. The evidence of DW.3 was to the effect that he went to the shop of the appellant and in that shop, he had already seen the appellant and DW.3 admitted that he wrote the contents of Ex.D.3 and he used to come with the respondent for purchasing articles and on 10.11.2003, the respondent asked him to accompany him to the appellant's shop for making payment and along with DW.4 all the 3 went to the appellant's shop and the appellant received Rs. 4,48,000/- on 10.11.2003. The respondent admitted that the appellant took LIC policy from him and he was also a subscriber of the chit conducted by the respondent. Ex.D.3 is not the full letterhead of the appellant and in the top portion the name of the appellant was written in ink having address at No. 139, Obanakara Street, Coimbatore. Admittedly, the appellant is having business at No. 139, Obanakara Street. Ex.D.3 is not the full letterhead of the appellant and in the top portion the name of the appellant was written in ink having address at No. 139, Obanakara Street, Coimbatore. Admittedly, the appellant is having business at No. 139, Obanakara Street. The business name of the appellant was not found in Ex.D.3 and having regard to the fact that DW.3 and DW.4 were from different places and they were taken by the respondent on 10.11.2003 to the appellant's shop and paid the amount without getting the cheques alleged to have been given in the year 1998 appears to be strange having regard to the conduct of the respondent. Admittedly, he did not receive any receipt for having paid interest from the year 1998 and he admitted the receipt of Rs. 4,00,000/- in the year 1998 and according to him, he owed Rs. 2,00,000/- to the appellant and Rs. 2,00,000/- to the appellant's wife but under Ex.D.3, there was no reference to the money transaction with the appellant's wife and the cheques alleged to have been given in 1998 were mentioned in the year 2003 and there was no explanation for not claiming return of those cheques would only lead to the conclusion that Ex.D.3 must have been fabricated by using the signature of the appellant. This is further strengthened by examination of PW.1 where in no suggestion was put to PW.1 regarding loan payable to the wife or transaction from the year 1998 or issuance of cheque in the year 1998. 20. According to me, these were not properly appreciated by the trial court while acquitting the respondent. Therefore, I hold that in a case where the receipt of consideration is admitted and the accused pleads discharge, he has to prove the discharge by adducing proper proof and he cannot relying upon the probabilities or by raising a probable defence. In this case, the respondent failed to prove the discharge under Ex.D.3 and the evidence of DW.3 and DW.4 will not prove the proof of repayment. Though the respondent is not liable to enter into witness box to prove his case, having pleaded discharge, he has to prove the same and his statement is also contrary to the evidence of DW.3 and the suggestion put to him. Hence, I hold that Ex.D3 cannot be believed to arrive at the conclusion that the respondent has discharged the debt. 21. Hence, I hold that Ex.D3 cannot be believed to arrive at the conclusion that the respondent has discharged the debt. 21. Considering all these aspects, I set aside the finding of the trial Court that the respondent proved the discharge and also the acquittal of the accused/respondent. I hold that the accused/respondent is found guilty under section 138 of the Negotiable Instruments Act. The Appeal is allowed.