TMI Blog2019 (1) TMI 1699X X X X Extracts X X X X X X X X Extracts X X X X ..... any debt or other liability. It is settled law that this presumption is rebuttable and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities and not beyond reasonable doubt. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence because Section 139 imposed an evidentiary burden and not a persuasive burden. Admittedly there are disputes between the parties. The accused has raised a probable defence that complainant has not proved that there was legally enforceable debt or liability. There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to accused under the fundamental principle of criminal juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent had denied that he issued any cheque for ₹ 32 lakhs to appellant. In the cross examination of PW-1, it has been suggested by defence that accused used to leave blank cheques with complainant for business purposes signed by him. In order to establish the guilt of the accused, complainant gave evidence of himself as PW-1. Two other witnesses have deposed, who were Bank employees, to prove the cheque. 3. Under Section 138 of the said Act where any cheque drawn by a person on an account maintained by him is drawn in favour of another person for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, the said person shall be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both. Explanation to Section 138 provides For the purposes of this section, debt or other liability means a legally enforceable debt or other liability . The key word is legally enforceable debt or other liability. 4. Section 139 of the said Act provides for presumption in favour of holder and it says it shall be presumed, unless the contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e burden. 6. Accused did not lead any evidence to show that the signature on the cheque is not the way he normally signs. Therefore, the Trial Court accepted and rightly so, that the signature was that of respondent no.1. In the cross examination, for the first time, complainant (PW-1) stated that the name, amount and date mentioned in the cheque were not in the hand writing of accused. It is settled law that any party approaching the Court should approach the Court with clean hands. We have to keep in mind that the accused has denied in his Section 313 statement having issued the cheque and in the cross examination, suggestion has been given to PW-1 that when there were business relations existing between him and accused, accused has left signed blank cheques with complainant. The approach of defence is that complainant misused one of the cheque and filled up the details. When we correlate this with the admission of PW-1 during his cross examination, that the other details in the cheque, i.e., his name, amount in words and figures and date were not in the hand writing of the accused, in my view, it satisfies the presumption of preponderance of probabilities of the stand t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er claim. PW-1 also agrees that he did not produce any documentary evidence to show that this cheque of ₹ 32 lakhs was issued by respondent no.1 in respect of a transaction with him regarding two firms and one company. 9. Admittedly there are disputes between the parties. The above only prove that accused has raised a probable defence that complainant has not proved that there was legally enforceable debt or liability. 10. The Apex Court in Chandrappa Ors. V/s. State of Karnataka (2007) 4 SCC 415 in paragraph 42 has laid down the general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under : 42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
