TMI Blog2010 (2) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Facts, briefly are : The complainant contended that he had good cordial relations with the accused and the accused had demanded ₹ 45000/- which complainant paid in lieu thereof the accused had issued the cheque in question with promise and assurance that it would be honoured which returned dishonoured for non-payment due to funds insufficient and remained unpaid despite demand notice dated 20.9.2007 in writing served upon the respondent/accused on 25.9.2007 The accused failed to pay within stipulated period. Hence, complaint was filed on 3.11.2007 5. The accused denied the charge (exhibit 23) on the defence that the complainant had misused the cheque which was taken from the accused by brother of the complainant as help for his election in the year 2006. 6. Learned Advocate for the appellant submitted with reference to evidence that the accused is known to the complainant since childhood and had cordial relations and the cheque in question was given by him to the complainant as hand loan was advanced in the sum of ₹ 45,000/- only from the complainant. Admittedly, the complainant had money in the Bank and he had expressed his readiness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. He criticised the decision of acquittal by the trial Court as unreasonable and prayed for to allow the appeal. 7. On the other hand, learned Advocate for the respondent submitted that the accused entered in the defence to depose that he had issued two blank cheques drawn on the Akola Urban Cooperative Bank Limited, Akola and cheque bearing no. 338343 was misused by the complainant to lodge complaint by filling in the blanks as to date, amount and name of payee. Learned Advocate made reference to ruling in Krishna Janardan Bhat v. Dattatraya G. Hegde reported in 2008 All MR (Cri) 1164 (SC) to argue that existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It was for the complainant to prove the existence of legally enforceable debt or liability. He further argued that presumption of innocence is human right and the trial Court did take a reasonable view of the facts to dismiss the complaint and acquit the accused. 8. Learned Advocate for the respondent submitted with reference to ruling in Sanjay Mishra v. Kanishka Kapoor reported in 2009 (4) Mh.L.J 155 that remedy to recover unaccounted cash which is not shown i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to complainant in the course of cross-examination indicate that it is case of the defence that two cheques were taken by brother of the complainant. If that be so, it must be presumed under Section 118 of the Act that the complainant had received it as holder in due course for consideration. The accused has contended that the cheque in question was given as security to meet the election expenses. Had it been so, the accused would have immediately replied to the demand notice in writing accordingly and would have protested and complained to the police about alleged misuse of cheque taken by brother of the complainant. Learned trial Magistrate appears to have ignored these aspects of the case before forming concluding opinion as to acquittal of the accused which, of course, resulted in miscarriage of justice. In these days, it is not unusual even for a petty businessman to possess a sum of ₹ 45,000/- or so. 10. In a criminal trial one has to start with the presumption of innocence in favour of the accused which is also regarded as human right because no one can be convicted and punished merely on the ground of suspicion however strong it may be. The prosecution is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumed, the purpose of the presumption is over. But it is settled law that to rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt, as is expected of the complainant in a criminal trial to prove offence. The accused may adduce evidence to prove that there was no debt or liability to be discharged by him. At the same time, it has to be borne in mind that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused to seek dismissal of the complaint. Something which is probable has to be brought on record for getting the burden of proof shifted back to the complainant. If case of the complainant is false then the accused as any reasonable ordinary prudent person is bound to react sharply by replying to the demand notice received by the accused. Keeping deliberate silence by the accused while demand notice in writing is served upon the accused is itself a strong circumstance in favour of the complainant. The accused did not stop payment of the cheque through his Bank nor reported alleged misuse of the cheque to the police. In Gorantla Venkateswara Rao v. Kolla Veera Ragha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that cheque in question issued was signed by the drawer (accused) drawn on the Akola Urban Cooperative Bank Limited, Main Branch, Akola and that there is presumption in favour of the complainant in view of Section 139 of the Negotiable Instruments Act. However, it appears that learned trial Magistrate has misled himself by the alleged handwriting by complainant's brother Mustafa on the cheque. The logic of the trial Court that it did not find evidence to believe the financial soundness of the complainant to lend huge amount of ₹ 45,000/- and therefore it did not feel that the amount may have been lent to the accused appears strange, because first of all, sum of ₹ 45,000/- is not such a huge amount which a person running business, though small maybe, may not have at his disposal. Be that as it may, presumptions statutorily available to the complainant were not rebutted by the accused by adducing satisfactory evidence to the contrary. Section 138 of the Act aims at punishing unscrupulous drawers of cheques who though purport to discharge their liability by issuing cheque, have no real intention to pay. Trickster drawer may find out way and means to defeat the honest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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