TMI Blog2018 (11) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... e case against the accused beyond reasonable doubt - It is also settled that the accused had to prove in the trial by leading cogent evidence that there was no debt or liability and that the accused not having led any evidence could not be said to have discharged the burden cast on him. Existence of legally recoverable debt or liability is a matter of presumption under Section 139 of the N.I. Act. Since issuance of Ex.P1-cheque by the accused and his signature therein are admitted by the accused and the complainant has proved his case by way of preponderance of evidence to show that Ex.P1-cheque returned with an endorsement funds insufficient, it is to be held that the complainant has proved his case and that the lower appellate Court went wrong in setting aside the judgment of the trial Court, which is a well founded - the acquittal of the accused by the lower appellate Court deserves interference. The judgment of the trial Court in C.C.No.715 of 2005, dated 03.7.2007 on the file of the learned Judicial Magistrate No.II, Salem is restored - appeal allowed. - Criminal Appeal No.547 of 2008 - - - Dated:- 29-10-2018 - Mr. Justice M.V. Muralidaran For the Appellant : Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the complainant and Mr.N.Karthikeyan, learned counsel for the accused and also perused the materials available on record. 8. In his evidence, the complainant, who was examined as P.W.1 had stated that the accused borrowed ₹ 25,000/- on 15.8.2005 for his family expenses from him and for repayment of the said amount, he had issued Ex.P1 cheque dated 15.10.2005 for ₹ 25,000/-. He further stated that when the cheque was presented for encashment, the same was returned as funds insufficient through Ex.P2. Thereafter, the complainant issued Ex.P3 legal notice to the accused to his two addresses demanding money and the acknowledgment cards were marked as Exs.P4 and P5. 9. Admittedly, in the case on hand, the accused has not examined as witness. However, in his evidence D.W.1-Raja has stated that he was running Gas Agency and was doing cement sales business and at the relevant point of time the accused was working in his shop. Since the accused sold different brand, he was removed. In his evidence, D.W.1 stated that in the business transaction between the complainant and the accused, there was a balance to be paid by the accused. Since the accused failed to pay th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On a perusal of the judgment of the lower appellate Court, it is seen that it has shifted the burden on the complainant. The said approach adopted by the lower appellate Court is not correct and it had failed to consider that the accused has to prove his case and discharge his liability over the complaint by making sufficient evidence that he has no liability to pay the cheque amount to the complainant. Whereas the lower appellate Court reversed the finding of the trial Court and acquitting the accused based on the evidence of D.W.1 and Ex.D1, which does not speak about the disputed cheque. 14. In order to appreciate the respective submissions of the counsel for the parties, it will be desirable to reproduce the relevant provisions:- 118. Presumptions as to negotiable instruments. - Until the contrary is proved, the following presumptions shall be made: (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; 138. Dishonour of cheque for insufficiency, etc., of funds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases and shifted the onus on the accused. 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. 17. It is also settled that the accused had to prove in the trial by leading cogent evidence that there was no debt or liability and that the accused not having led any evidence could not be said to have discharged the burden cast on him. Existence of legally recoverable debt or liability is a matter of presumption under Section 139 of the N.I. Act. As stated supra, in the case on hand, the accused has not gone into the witness box. 18. In Rangappa vs. Mohan, reported in AIR 2010 SC 1898, it has been held that when once the execut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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