TMI Blog2019 (8) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... t would depend upon the circumstances of each case - In the instant case, in the light of the inconsistency in the evidence of PW1 regarding the drawing and delivering of the cheque by the accused, examination of the independent person, who had allegedly seen the accused drawing and delivering the cheque to the complainant, was necessary. But the complainant did not prefer to examine that person as a witness. In the instant case, the accused has raised a plea which is probable and acceptable. He entered the witness box and gave evidence in support of his plea. Admittedly, the complainant is a partner of the firm 'Crown Kuries'. The plea of the accused that, he had given a signed blank cheque when he received the kuri amount from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents : PUBLIC PROSECUTOR SMT. MAYA. M. N. JUDGMENT The appellant is the complainant. Challenge in the appeal is directed against the judgment of the trial court acquitting the first respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as 'the Act'). 2. The case of the complainant, as per the averments in the complaint, is that the accused had drawn and delivered to him a cheque dated 17.05.2006 for ₹ 20,000/- in discharge of a legally enforceable debt. 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 accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acknowledgment card. The complaint was filed on 22.07.2006. 6. The complainant was examined as PW1. In examinationin- chief (proof affidavit), he has given evidence that when he demanded the accused to repay the amount of ₹ 20,000/- borrowed from him, the accused wrote and signed the cheque dated 17.05.2006 for that amount and gave it to him. 7. PW1 has stated on cross examination that it was early in March, 2006 that the accused borrowed the amount from him but he could not remember the date of the transaction. He would say that he does not know the details of the accused. He has stated that the accused came to his house with the cheque and signed it and gave it to him. He would say that the amount wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the execution of the cheque by the accused. He has stated in examination-in-chief that the accused wrote and signed the cheque and gave it to him. However, on cross examination, he would say that the accused had come to his house with the cheque and then the amount was already written in the cheque. 12. In the third place, though PW1 has stated on cross examination that his neighbour Abi had seen the accused drawing and delivering the cheque to him, Abi was not examined. 13. The evidence of the complainant, where it is found to be credible and trustworthy, is sufficient to conclude that the cheque was duly executed by the accused and delivered to him. Corroboration is a rule of prudence and not one of law. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm. He would say that he only used to attend the meetings in the firm. May be, as a partner of the firm, he was not dealing with the day to day office matters of the firm. But, he has stated that he had got acquaintance with the accused for a period of six years. According to PW1, that is the reason why he gave amount to the accused without obtaining any documents from him. If the accused was a person closely acquainted with him, the complainant would have known whether the accused had subscribed to the kuri conducted by the firm. At any rate, there is no reason to disbelieve the evidence of DW1 that he had subscribed to the kuri conducted by 'Crown Kuries' and that he had given a signed blank cheque at the time of receiving the k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be totally disbelieved or that his failure to send a reply would tantamount to proof of execution of the cheque (See Yohannan v. Sabu : 2012 (2) KHC 761 ). 19. It is undoubtedly true that when a cheque is signed and issued by a person and the complainant reasonably discharges the initial burden of proving execution of the cheque by the accused, the burden is upon the accused to rebut the presumption under Section 139 of the Act. But the standard of proof required for rebutting any such presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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