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TMI Blog2020 (12) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... ate complaint under Section 200 of the Code of Criminal Procedure, 1973 (herein after referred to as 'Cr.P.C.' for short), came to be filed on 24.07.2007, stating that complainant and accused were relatives. As such on 01.05.2007, accused borrowed sum of Rs. 2,00,000/- as hand loan promising to repay within one month, by issuing a post dated cheque of 01.06.2007, bearing No.0545620 for rupees two lakhs, drawn on Ballari District Co-operative Central Bank, K.C. Road Branch, Ballari. When it was presented on 06.06.2007, it returned unpaid on the same day with endorsement "funds insufficient". Thereafter complainant issued statutory notice to accused on 14.06.2007, by RPAD. It was received by accused on 15.06.2007. But accused did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenging acquittal, complainant is in appeal. 5. Learned counsel Sri Girish S.Hiremath for complainant submitted that complainant had made clear averments about all ingredients constituting offence under Section 138 of N.I. Act and also produced supporting documents namely cheque as Ex.P1, bank endorsement as Ex.P2, statutory notice as Ex.P3, postal receipt as Ex.P3(a) and postal cover as Ex.P4. Despite the above and even in absence of any contrary evidence being led by accused, trial Court acquitted accused. It was submitted that the reasons assigned by trial Court for acquittal are contrary to evidence on record. Even conclusions drawn are perverse. The trial Court firstly held that complainant has failed to prove passing of consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Appeal No.1349/2010 disposed of on 10.04.2013 in case of Shashikala T. V/s Usha S. Prabhakar, submitted that burden to prove passing of consideration for a cheque was on complainant and on his failure, held that acquittal of accused was justified. 7. I have heard learned counsel, perused the impugned judgment and record. 8. In his evidence, PW1 has reiterated entire complaint averments. He has marked cheque as Ex.P1, bank endorsement as Ex.P2, statutory notice as Ex.P3, postal receipt as Ex.P3 (a) and postal cover as Ex.P4. During his cross-examination, it is elicited from complainant that he was working in PCMI Cement Factory and that he had fifteen acres of agricultural land in Andhra Pradesh. It was also elicited that complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f consideration and debt by leading direct evidence because 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 exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt of cheque in question, which was a post dated cheque. 13. The Trial Court next doubted financial capacity of complainant and his source of income to lend such loan. Even this has to fail, as there is presumption available to the complainant under Section 118 and Section 139 of N.I.Act, and unless such presumption is rebutted by accused with cogent evidence, complainant need not prove entire transaction, as if in a civil suit. Therefore, even this reason has to be held to be grossly illegal. 14. The Trial Court has further held that there is no explanation by complainant why such huge amount was not paid either through D.D. or by cheque. Relying upon decisions in M/s Shivashakti Mills (supra) and Keshar Prasab Sar af (supra) held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Court is set aside, accused is convicted of offence punishable under Section 138 of Negotiable Instruments Act, 1881. ORDER ON SENTENCE Learned counsel for appellant submitted that accused borrowed loan from complainant and failed to repay it since more than thirteen years. The cheque issued by accused on 01.06.2007 was dishonored for insufficiency of funds, which accused was well aware of. The complainant is made to approach courts in order to realize his money. On above grounds, he sought for imposition of severe sentence and maximum penalty permissible in law. On the other hand, learned counsel for accused submitted that accused was an agriculturist in financial distress and sought for minimal sentence/penalty. Following direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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