TMI Blog2015 (9) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his defence. Hence, the onus does not shift to the complainant. Hence, I am of the view that the cheque has been issued for discharging the legally enforceable debt. When the cheque was presented for encashment, it was returned as 'insufficient funds' on 11.09.2002. Hence, statutory notice has been issued to the respondent on 14.09.2002. However, the same was returned as could be evidenced by the return cover and postal receipt. Since the respondent/accused neither repaid the amount nor sent any reply, the appellant herein had preferred a complaint. In such circumstances, I am of the view that the appellant herein has proved the guilt of the accused under Section 138 of the Negotiable Instruments Act. The respondent/accused is convicted for the offence under Section 138 of the Negotiable Instruments Act. - Crl.A.Nos.801 and 802 of 2011 - - - Dated:- 6-3-2015 - MS. R.MALA, J. For The Appellant : Mr.S.Mukanchand Bothra (party-in-person) For The Respondent : Mr.K.Ramani JUDGMENT The Criminal Appeals arise out of the judgment of acquittal dated 07.10.2011 in C.C.Nos.6788 and 6787 of 2002 on the file of the learned VIII Metropolitan Magistrate, George Tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, the party-in-person/appellant/complainant has submitted that once issuance of cheque was admitted by the accused, the complainant is entitled to invoke presumption under Sections 118 and 139 of the Negotiable Instruments Act that the cheque was issued for discharging legally subsisting liability and the presumption is rebuttable one. But the respondent/accused has not rebutted the presumption by preponderance of probabilities. Whereas the trial Court has wrongly held that burden is shifted upon the complainant to prove that the cheque is issued for discharging legally subsisting liability. It is further submitted that the trial Court has held that the complainant has not obtained licence for money lending business, which is against law and the income tax returns shows that the debt of the accused was not mentioned in the liability column. But it will not come under the liability column. Since it is an asset, it was mentioned in the assets column. The trial Court without considering the above aspects, has erroneously acquitted the respondent/accused. To substantiate his arguments, the party-in5 person relied upon the following decisions: (i) Crl. A.No.1020 of 2010, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, it would be appropriate to consider the decision relied on by both sides. 9. The Party-in-Person relied on the following decisions: 9.1. In the decision of the Hon'ble Apex Court made in Criminal Appeal No.1020 of 2010, Rangappa v. Sri Mohan , it was held that 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, act upon the plea that it did not exist. 9.2. In the decision of this Court dated 29.04.2011 made in Crl.R. C.No.807 of 2005 and 556 of 2006, S.Swarna v. S.Mukanchand Bothra , it was held that once they plead discharge, the person who pleads discharge must prove the same. The respondent herein has proved that he discharged the same. But, he has not filed any documents to prove the discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney lending business and textile business. The observation is proper. 4[e] It is admitted that the appellant is income tax assessee. It is his evidence that he has included the loan in his income tax account. In this context, in the absence of production of income tax returns, it is to be held that the loan transaction should not have been shown in the account. As per the settled position of law, when the income tax assessee fails to produce income tax returns containing the loan transaction, it should have been observed that the alleged loan transaction is a an illegal one. Further, he has not disputed the genuineness of Exs. D1 to D3 and the evidence of PW2 with regard to these documents. 10.2. In the decision reported in (2008) 4 Supreme Court Cases 54, Krishna Janardhan Bhat v. Dattatraya G.Hegde , it was held that other principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by S.139 should be delicately balanced. Such balancing acts would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appropriate to incorporate paragraph 44 of the said decision: 44. In this case, the evidence on record makes it abundantly clear that the accused has proved the defence taken by her by preponderance of probabilities. Inference of preponderance of probabilities can be drawn only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. In this case, the accused has elicited vital admissions during the course of cross examination of P.W.1. From the evidence of D.Ws.1 and 2, which in the considered view of this court, has not been discredited, coupled with the fact that the complainant had not produced any account books to show that he was carrying on quarrying business as claimed by him and no documentary proof has been produced to prove his means it should be held that the complainant has failed to prove that the cheque was given in discharge of a legally recoverable liability. When the defence taken by the accused is that the complainant was a man of no means, it is the bounden duty of the complainant to prove by acceptable evidence that he had the means on the date on which he is alleged to have advanced the loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppa v. Sri Mohan , 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. However, in the instant case, to prove that he had repaid the money, the respondent has not let in any evidence. Hence, I am of the view that the respondent herein has not rebutted the presumption invoked under Section 139 of the Negotiable Instruments Act. Further, he has not probabilised his defence. Hence, the onus does not shift to the complainant. 13. Besides this, the Trial Court has held that the appellant is doing money lending business without obtaining any licence and so, it is illegal. But the above finding of the Trial Court is not correct. If money lending business has been done without any licence, he ought to have been prosecuted in accordance with law and it cannot be a ground for acquittal under Section 138 of the Negotiable Instruments Act. 14. It is also pertinent to note that the Trial Court in paragraph 14 of its judgment has stated that the amount lent to the respondent/accused has not been shown in the liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record and having regard to legal principles governing the same. Even though it is a judgment of acquittal, the same should not be interfered with unless it is found to be perverse. 17. Considering the judgment of the Trial Court in the light of the above decisions, the Trial Court has not considered the basic principle that once the signature and the issuance of the cheque is admitted by the respondent/accused, it must invoke the presumption under Section 118 and 139 of the Negotiable Instruments Act that Ex.P.1/Cheque has been issued for discharging the legally subsisting liability. Furthermore, the Trial Court in paragraph 14 of its judgment has stated that the amount has not been mentioned in the liability column of the Income Tax return. However, since the appellant has lent the amount to the respondent, the same was shown in the assets column. So, I am of the view that the Trial Court has not considered the legal preposition and committed material irregularity. Hence, the judgment of the Trial Court suffers perversity and the same is liable to be set aside. 18. In fine, (a) The Criminal Appeals are allowed. (b) The judgment of acquittal dated 07.10.2011 made in C. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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