TMI Blog2020 (1) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has not given any satisfactory reason as to why she did not send any written communication demanding the balance payment from respondent no.2. This fact becomes all the more important in the light of the testimony of respondent no.2 as DW-1 and legal notice Ex.DWl/C sent to the petitioner in October 2013 demanding his security cheques from the petitioner - the learned Trial Court opined that the case of the petitioner that there exists legally enforceable debt of ₹ 3,15,000/- against respondent no.2, is rendered doubtful. It is a settled principle of law that the presumptions U/s 118 (a) and 139 of N.I. Act, 1881 are rebuttable in nature and standard of proof required by accused such rebuttal is preponderance of probabilities and the standard of proof on behalf of prosecution is proof of guilt beyond all reasonable doubts. The petitioner/complainant has miserably failed to prove her case beyond reasonable doubt - petition dismissed. - CRL.A. 131/2018 - - - Dated:- 16-1-2020 - MR. SURESH KUMAR KAIT J. Appellant Through: Mr. Faisal Naseem, Adv. with Mr. Vinay Garg, Adv. Respondents Through: Mr. Abhay Kumar, Adv. With Mr. Rahul Ranjan, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 10.01.2017 acquitted respondent no.2 for the offence under section 138 of the N.I. Act. 4. The present petition is filed on the ground that impugned order dated 10.01.2017 is ex facie contrary to the law and perverse and is wholly unjust and the same is liable to be set aside. Learned MM has erred by ignoring the statement of respondent no.2 recorded under Section 313 Cr.P.C. wherein he has clearly admitted that loan was taken from the petitioner amounting to ₹ 3,15,000/- during the period of April to July 2012 and has further admitted to have issued the cheque in question in favour of petitioner. Moreover, Ld. MM has also overlooked the notice framed under Section 251 Cr.P.C. against respondent no.2 wherein he has admitted to have taken a loan from the petitioner though he alleged to have taken loan of ₹ 1,50,000/- and set up the defence of issuing the cheque in question as security for the loan. 5. Learned counsel for the petitioner submits that learned MM has failed to appreciate the law that defence of security necessarily stipulates that repayment has been made by the borrower but in the present case respondent no.2 has miserably failed to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in in para no.2 it is stated that respondent no.2 had taken friendly loan of ₹ 1,50,000/- which is contrary to the deposition of respondent no.2 as DW-1 where he has deposed that he was a guarantor for loan advanced of ₹ 50,000/- and ₹ 1,00,000/- to two different persons. Based upon the aforesaid facts, the learned Trial Court opined that it is not a material contradiction as the loan admitted by respondent no.2 is ₹ 1,50,000/- for whichever purpose he might have taken the same. It is of no material consequence that whether the loan of ₹ 1,50,000/- was taken by respondent no.2 himself or a guarantor as on both the occasions, he has admitted and has been constant on the point of amount of loan of ₹ 1,50,000/-. 7. The contention of the petitioner before Ld. the Trial Court was that entry at point A and B and her signatures in passbook Ex. DWl/B are forged, false and fabricated. However, the burden was upon the petitioner to take the argument to its logical end. No steps were taken by petitioner to get the document examined by Forensic Expert. Further, on comparing through naked eye, the disputed signature at point A B on Ex. DWl/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the aid burden upon the prosecution vis-a-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision. Para 14. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt, the one on the accused is only mere preponderance of probability . Para 16. The nature and extent of such presumption came up for consideration before this Court in M.S. Narayana Menon Vs. State o fKerala wherein it was held :(SCC p. 50, para 30) 30. Applying the said definitions of proved or disproved to the principle behind. Section 118 (a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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