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TMI Blog2020 (1) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the N.I. Act had sentenced him to undergo simple imprisonment for a period of one year and pay compensation of Rs. 6.00 lakh with the default stipulation as to undergo simple imprisonment for three months. Being aggrieved by the same, the petitioner (accused) had filed the appeal. The appellate court while confirming the finding of conviction as returned by the trial court has refused to interfere with the order of sentence as also the direction of payment of compensation. Hence, this revision. 2. The case of the complainant is that the accused was in need of money to clear up the loans incurred by him for meeting the expenses for construction of house, the educational expenses of his children etc. For the purpose on 18.3.2014 the accused had taken a friendly loan of Rs. 5.50 lakh from the complainant. For the sake of evidence, the accused had executed an agreement which had been notarized. By that agreement, accused having acknowledged the receipt of money, had undertaken to refund the said amount without interest within a period of nine months. After expiry of the stipulated period of payment as agreed upon, the complainant requested the accused to pay back the said sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant, the complaint has been lodged stands rebutted. It was his submission that on the face of the evidence on record, in the backdrop of the settled position of law that the presumption available under sections 118 (a) and 139 of the N.I. Act is rebuttable in nature and in order to rebut the said presumption what is needed is to raise a probable defence and for that purpose, without even disproving the existence of consideration by the defence by leading the evidence, the evidence adduced on behalf of the complainant would well be relied upon and the standard of proof evidently is preponderance of probability with the drawal of inference from the material on record as well as with reference to the circumstance upon which the defence places reliance; the courts below ought to have held that the presumption has been well rebutted. According to him, as per the settled law, it is not necessary that the defence must disprove the prosecution case in its entirety and the initial burden as above is discharged by the accused, the onus shifts to the complainant so as to establish the subsisting debt and liability as on the date of the demand of payment of the money covering under the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the evidence on record; the courts below are right in rendering the finding of guilt against the accused and thus there surfaces no such perversity warranting inference with said concurrent finding in exercise of revisional jurisdiction. Proceeding to explain the evidence of P.Ws. 1 and 2 as highlighted by the learned counsel for the petitioner, he submitted that all those have been taken into consideration by the courts below in their proper perspective and the ultimate conclusion being founded upon just and proper appreciation of evidence in the backdrop of the rival case; further in the touchstone of settled position of law; the revision sans merits. In support of his contentions, he has placed all the decisions of the Apex Court as noted below which would come up for discussion hereinafter. (i) Prem Thakur Vrs. State of Punjab; AIR 1983 SC 61. (ii) Kumar Experts Vrs. Sharma Carpets; (2009) 2 SCC 513; (iii) Bir Singh Vrs. Mukesh Kumar; AIR 2019 SC 2446; (iv) Robitbhai Jivanlal Patel Vrs. State of Gujarat; AIR 2019 SC (CRI) 775 (Relied upon by the petitioner); (v) M/s. Shree Daneshwari Traders Vrs. Sanjay Jain; AIR 2019 SC 4003; and (vi) Uttam Ram Vrs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has further been held therein that the court may not insist upon the accused to disprove the existence of consideration by leading direct evidence as the non-existence by leading negative evidence may neither be possible nor is contemplated and even if led is to be seen with due suspicion. The standard of proof evidently is preponderance of probabilities and the drawal of inference is permissible from the preponderance of probabilities not only from the materials on record but also with reference to the circumstances upon which reliance on that score is placed. The above positions have been reiterated in case of K. Prakashan vs. P.K. Surenderan; 2007 (3) Apex Court Judgments 429 (SC). 9. In case of "K. Subramani (supra) cited by the learned counsel for the petitioner (accused), the same principles of law being restated; in the given facts and circumstances, upon acceptance of the finding of the trial court that the complainant had no source of income to lend such huge amount of Rs. 14.00 lakh to the accused; the court has thus gone to hold that he has failed to prove that any legally recoverable debt was payable by the accused to the complainant. 10. In a recent case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of evidence that during the year 2010-11 as per the case of the complainant, he made payment of Rs. 18.00 lakhs and when he has failed to give satisfactory reply during cross-examination being questioned as regards his financial capacity to pay Rs. 6.00 lakhs to the accused; the Apex Court has said that the accused has been able to raise a probable defence shifting the burden on the complainant to prove his financial capacity and other associated facts. The Apex Court has also negated the view taken by the High Court as regards non-response by the accused to the notice of demand sent by the complainant prior to the lodging of the complaint as a circumstance in favour of the case of the complainant as to the legal liability of the accused. 11. In case of Krishna Janardhan Bhat vs. Dattatraya G. Hegde; 2008 (1) Apex Court Judgments 412 (SC), the same principles of law have been reiterated with more elaboration. It has been said as under:- "34. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in section 114 of the Evidence Act to rebut the presumptions arising under sections 118 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and circumstances coming to conclude that the finding of the High Court that the case of the complainant is highly doubtful and as such not proved beyond reasonable doubt as patently erroneous, has set aside the order of acquittal and restored the order of conviction passed by the trial court which stood affirmed by the appellate court. 16. The Hon'ble Apex Court in case of Kishan Rao vs. Shankargouda; 2018 (II) OLR (SC)-733, keeping in mind, the above settled position of law when has found that the issuance of cheque containing the signature of the accused to have been dishonoured for insufficient fund leading to the drawal of presumption available under section 139 of the Act further finding the same to have not been rebutted either on the evidence of the complainant or through other evidence let in by the accused has set aside the order of the High Court by which the order of conviction had been annulled in exercise of revisional jurisdiction. 17. In case of Sampelly Satyanarayana Rao vs. Indian Renewable Energy; 2016 (II) OLR (SC)-1085, the answer has been that the dishonor of a post-dated cheque given for repayment of loan installments which is also described as "securi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruction of his house , children's education and for other sundry loans. It is the further case of the complainant that on 18.3.2014, he paid a sum of Rs. 5.50 lakh to the accused as friendly loan and it was agreed upon that the said amount would be returned within a period of nine months. On that very day, it is said that the accused executed an agreement Ext. 11. It is further stated that after expiry of the said period of nine months in order to discharge the debt and liability towards the said friendly loan, the accused had issued the cheque Ext. 1 for a sum of Rs. 5.50 lakh which being dishonoured and having remained unpaid forms the subject matter of the present case. The case of the accused is that he had incurred loan of Rs. 30,000/- and had given a blank cheque under his signature and the complainant had taken some signed blank stamp papers from him which have been mis-utilized. It has been narrated in the complaint petition that this agreement dated 18.3.2014 had been created to provide strong belief in the mind of the complainant that the amount given as friendly loan would be so returned on time. During cross-examination, the complainant i.e. P.W. 1 at paragraph-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilure to pay, the accused would give the cheque drawn on his account. It sounds absurd firstly for the reason that if the accused was having money in his account then why and what for the loan was asked for and taken; secondly, if the amount would be available in the account after nine month, instead of withdrawing the money and paying to the complainant, why cheque would be issued in favour of the complainant. These facts lead to doubt the very issuance of the cheque after expiry of nine month from the date of loan and the delivery of blank signed cheque as per the version of the complainant stands as a probability. Next, P.W. 1 when has proved this agreement as Ext. 11; P.W. 2 has however for the reasons best known, not proved even his signature on the said agreement Ext. 11. Although, he states that he and one Sangram Dey are the witnesses to the said agreement, he is unable to say even give the address of the witness namely, Sangram Dey. Both will be standing as witnesses to a document and one will not be knowing the other creates genuine doubt that they were present together. It is again surpirsing to note that this witness has stated to have no knowledge about the nature of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under the circumstance comes under scanner that it might not be without interest and that rather probalises the theory of delivery of blank signed cheque and stamp papers. It has been stated by P.W. 1 that when after nine months on 12.1.2018, he requested the accused to pay back the loan, the accused being not able to immediately clear up, handed over the cheque. It is stated by P.W. 2 that on the very day the complainant, P.W. 1 had taken him to the house accused to collect the money and he instead of making payment, handed over a cheque. Surprisingly enough paragraph-9 of the agreement Ext. 11 which has been relied upon by the complainant run on the score that in case of non-payment of the amount within the time, the accused had agreed to issue a cheque drawn on his account in the Oriental Bank, Jaleswar towards payment of the said loan. A question then arises as to how it was so assumed then that the accused would fail to pay and thus the future course was so decided and if that is so whether the cheque would be issued notwithstanding the bank balance. This raises further doubt the payment being made by the complainant why the issuance of cheque stood deferred till expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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