TMI Blog2007 (10) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... gment is one of reversal of a judgment of acquittal passed by the learned Trial Judge in favour of the appellant. 3. Respondent herein allegedly, on diverse dates, advanced a sum of Rs. 3,16,000/- to the appellant who issued a cheque for the said amount on 18.12.1995. The said cheque was dishonoured on the ground of insufficient fund . Allegedly, when the matter was brought to the notice of the appellant, he undertook to remit the amount on or before 30.01.1996. The cheque was again presented but the same was not encashed on the ground payment stopped by the drawer . 4. On the aforementioned premise, a complaint petition was filed by the respondent herein against the appellant under Section 138 of the Negotiable Instruments Act (for short the Act ). 5. The complainant in support of its case led evidence to show that he had advanced various sums on the following terms: On 31-1-94 a sum of Rs. One lakh; on 8-6-94, Rs. 86,000/-; on 12-6-94, Rs. 28,000/-; on 23-4-95, Rs. 50,000/- on 18-6-95, Rs. 40,000/- and on 7-8-95, Rs. 12,000/-. 6. Defence of the appellant, on the other hand, was that he had issued blank cheques for the purpose of purchase of spare parts, ty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment reversed the said findings of the learned Trial Judge holding inter alia that the appellant having not examined himself cannot be said to have discharged the burden of proof cast on him in terms of Section 139 of the Act stating: (i) Virtually, the accused has not adduced any evidence to establish the specific case set up by him that the cheque leaf was placed inside a bag and that the above bag was kept in the shop of the complainant and that the complainant has lifted the particular cheque leaf during the period the bag was kept in his shop. He has also not adduced any evidence to establish his contention that he, employed as a driver in the K.S.R.T.C., was also involved in managing the private bus owned by his brother and that he used to issue blank cheques for the purchase of spare parts, tyres, etc. The above are matters that he could have adduced independent evidence in support. But he has declined to do so (ii) No adverse interference could have been drawn by the Trial Court only because the purported diary was not produced. (iii) The finding of the Trial Judge that it was difficult to believe that the complainant has advanced diverse amounts without any stip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 13. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability. 14. The learned Trial Judge had passed a detailed judgment upon analysing the evidences brought on record by the parties in their entirety. The criminal court while appreciating the evidence brought on record may have to weigh the entire pros and cons of the matter which would include the circumstances which have been brought on record by the parties. The complainant has been found to be not a man of means. He had allegedly advanced a sum of Rs. 1 lakh on 13.01.1994. He although had himself been taking advances either from his father or brother or third parties, without making any attempt to realize the amount, is said to have advanced sums of Rs. 86,000/- on 8.06.1994. Likewise he continued to advance diverse sums of Rs. 28,000/-, Rs. 50,000/-, Rs. 40,000/- and Rs. 12,000/- on subsequent dates. It is not a case where the appellant paid any amount to the respondent towards repayment of loan. He even did not charge any interest. He had also not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iori even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court. 39. A presumption is a legal or factual assumption drawn from the existence of certain facts. It was furthermore opined that if the accused had been able to discharge his initial burden, thereafter it shifted to the second respondent in that case. The said legal principle has been reiterated by this Court in Kamala S. v. Vidhyadharan M.J. and Another [(2007) 5 SCC 264] wherein it was held: The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case. The nature and extent of such presumption came up for consideration before this Court in M.S. Narayana Menon Alias Mani V. State of Kerala and Anr. [(2006) 6 SCC 39] wherein it was held : 30. Applying the said definitions of proved o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one s own wrong. If we hold otherwise, by giving instructions to banks to stop payment of a cheque after issuing the same against a debt or liability, a drawer will easily avoid penal consequences under Section 138. Once a cheque is issued by a drawer, a presumption under Section 13 9 must follow and merely because the drawer issued notice to the drawee or to the bank for stoppage of payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of the cheque in due course. This was the view taken by this Court in Modi Cements Ltd. v. Kuchil Kumar Nandi 2 . On same facts is the decision of this Court in Ashok Yeshwant Badave v. Surendra Madhavrao Nighojakar. The decision in Modi case overruled an earlier decision of this Court in Electronics Trade Technology Development Corpn. Ltd. v. Indian Technologists Engineers (Electronics) (P) Ltd. which had taken a contrary view. We are in respectful agreement with the view taken in Modi case. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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