TMI Blog2018 (8) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution and the standard of evidence that is to be adduced by the defendant to rebut the presumption under Section 139 of the Negotiable Instruments Act is that of the preponderance of the probability either through direct or circumstantial evidence. For the said purpose, the learned counsel for the respondent/accused also relied upon the evidence adduced by the complainant. The Trial Court has rightly come to the conclusion that the respondent has not issued the cheque in question for any legally enforceable debt. Accordingly, the trial Court has acquitted the accused. The said order does not require any interference and the same is hereby confirmed - Criminal appeal dismissed. - Criminal Appeal No. 320 of 2008 - - - Dated:- 1-8- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked Exs.P1 to P8. On behalf of the respondent/accused, he examined himself as DW1 and marked Ex.D1 to D7. 5. It is the specific case of the private complainant namely Sree Guruvayurappan Investments that the respondent herein has borrowed a sum of ₹ 2,85,000/- on 24.04.2004 and agreed to repay the said amount with interest at 36% p.a., and executed a promissory note. On demand, he has issued Ex.P3 cheque for ₹ 3,00,000/- on 28.06.2004 and on presentation, the same was dishonoured and after observing the legal formalities, the private complaint was filed. 6. Per contra, the respondent/accused took a specific stand that he never handed over any cheque to Guruvayurappan Investments limited. On the contrary, he subscribed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tend that the Trial Judge committed an error in not accepting the case of the private complainant having regard to the admission of factum of the signature in the pro-note and also in the cheque by the respondent. However, the Trial Court has relied upon the Non-traceable certificate issued by the Ponneri Inspector in Ex.B5 to dismiss the complaint. 9. Heard both sides and perused the records. 10. After perusing the records and also documents produced before the Trial Court, the learned Judicial Magistrate has come to conclusion that the private complainant/appellant is entitled for initial presumption in his favour on the ground that the respondent herein has accepted the signature in the pro-note as well as in the Cheque. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Town Panchayat office from the car and even after diligent search, same could not be traced and hence, he has given a complaint to the police station. After investigation, a non traceable certificate was issued. It remains to be stated that Ex.B4 and B5 were prior in time and much before filing of this case, in fact immediately after the missing of the signed cheques. It is also brought on record during the evidence of PW1 that one of the Cheque, which is said to have been missing or stolen is covered under Ex.B3, it appears. Private complaint is lodged and a cheque case was filed before Kerala Court in C.C.No.994 of 2007 by none other than one of the relative of the private complainant herein, assumes significance. At this juncture, the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B6, the Trial Court has come to the right conclusion that the respondent has successfully rebutted the presumption and same is hereby confirmed. 14. In this regard, it is to be stated that the standard of proof that is required to discharge the onus of proofs, on the accused is not as that of the prosecution and the standard of evidence that is to be adduced by the defendant to rebut the presumption under Section 139 of the Negotiable Instruments Act is that of the preponderance of the probability either through direct or circumstantial evidence. For the said purpose, the learned counsel for the respondent/accused also relied upon the evidence adduced by the complainant. Further, in support of his case, reliance was placed in the said de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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