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TMI Blog2019 (8) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the complainant is as follows: The complainant and the accused were acquainted with each other. The accused had borrowed an amount of Rs. 35,000/- from the complainant. When the complainant demanded repayment of the amount, the accused signed a cheque dated 28.09.2007 for Rs. 35,000/- and gave it to him. The complainant presented the cheque in the bank. It was dishonoured for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused did not claim the notice. He did not pay the amount. 3. During the trial of the case, PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. No evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requested him to lend the money. He has stated that he gave the amount to the accused on 28.08.2007. He would say that the accused made the entries in the cheque and signed it and gave it to him. 8. The plea of the accused is that he had borrowed Rs. 5,000/- from one Vincent, a friend of the complainant, and he had given the cheque as security at the time of that transaction. It is alleged by the accused that he had repaid Rs. 12,000/- to Vincent but the cheque was not returned to him and that the complainant has misused the aforesaid cheque and filed the complaint against him. 9. No evidence was adduced by the accused to prove that he had borrowed any amount from any friend of the complainant. No evidence was adduced by him to prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... averment in the complaint with regard to the date of borrowing the amount is not necessarily fatal in all cases. It would depend upon the facts and circumstances of each case. In the instant case, absence of averment in the complaint as to the date of the transaction does not assume any significance. Regarding the date of issuing the cheque, it is to be noted that there is a presumption under Section 118(b) of the Act that every negotiable instrument bearing a date was made or drawn on such date. 14. PW1 has stated on cross examination that it was on 28.08.2007 that the accused borrowed the money from him. But, he has stated that the accused gave him the cheque on 26.08.2007. The trial court has found that it was not probable that the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing. Not even a suggestion was made to PW1 in the cross examination that the different entries in the cheque are in different handwriting or that the amount in words is written in the cheque in a different handwriting. 16. In the aforesaid circumstances, the evidence of PW1 cannot be disbelieved on any of the grounds stated by the trial court in the impugned judgment. 17. On broad probabilities, there is no reason to doubt or suspect the statement on oath of PW1. The fact that the accused has no reasonable and probable explanation as to how the cheque travelled from his possession to that of the complainant is certainly a crucial aspect, while considering the acceptability of the evidence of PW1. 18. The denial of execution and tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In the case of a mandatory presumption, the burden which rests on the accused person would not be as light as it is where a presumption is raised under Section 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 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 (See Hiten P. Dala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount but interest thereon at a reasonable rate. 24. In the result, the appeal is allowed and it is ordered as follows: (i) The judgment of the trial court acquitting the accused of the offence punishable under Section 138 of the N.I. Act is set aside. (ii) The first respondent/accused is found guilty of the offence punishable under Section 138 of the N.I.Act and he is convicted thereunder. (iii) The first respondent/accused is sentenced to undergo imprisonment till the rising of the court. He is further directed to pay an amount of Rs. 60,000/- (Rupees sixty thousand only) as compensation to the appellant/complainant under Section 357(3) Cr.P.C and in default of payment of compensation, to undergo simple imprisonment for a peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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