TMI Blog2020 (12) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... cie perverse. When there is no dispute about signature on cheque and its issuance, the complainant is entitled for presumption about the same being issued towards discharge of existing debt, and therefore, the complainant is not required by law to prove the said fact. Further, it is the complainant's case that the money was lent against receipt of cheque in question, which was a post dated cheque. The impugned judgment passed by trial Court is set aside, accused is convicted of offence punishable under Section 138 of Negotiable Instruments Act, 1881 - appeal allowed - decided in favor of appellant. - CRIMINAL APPEAL No. 100221/2014 - - - Dated:- 8-12-2020 - THE HON'BLE MR.JUSTICE RAVI V.HOSMANI FOR THE APPELLANT : SRI GIRISH S .HIREMATH , ADVOCATE FOR THE RESPONDENT : SRI M.AMAREGOUDA, ADVOCATE JUDGMENT This appeal is filed against the judgment dated 04.09.2014 passed by the Principal Civil Judge and JMFC, Ballari in C.C.No.1009/2007, acquitting the accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I.Act' for short) 2. Brief facts giving rise to this appeal are that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant 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 consideration amount to accused for issuing cheque. The trial court observed that no man of ordinary prudence would lend huge amount of rupees two lakhs without obtaining any document for security of said amount. Trial Court further doubted financial capacity of complainant and his source of income to lend such loan. It further held that there is no explanation by complainant why such huge amount was not paid either through D.D. or by cheque and relying upon decision of High Court of Tamil Nadu, in case of M/s Shivashakti Mills V/s Chandrashekhar reported in DCR 2011 (1) 627 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admission would be inconsequential to this case. Likewise though it is elicited that complainant got some settlement amount from PCMI cement factory and some amount by selling his bakery, there is no further cross-examination of witness on this aspect, whether said monies were sufficient to lend rupees two lakhs to accused etc. Under the circumstances, observations of Hon'ble Supreme Court in Kumar Exports V/s Sharma Carpets reported in 2009(2) SCC 513 quoted in Kishan Rao (supra) do come to my mind. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that burden of proving foundational facts and passing of consideration for cheque, was on complainant, and as he failed to discharge this burden, it acquitted accused. As rightly submitted by the counsel for Appellant, bare total denial by accused cannot be taken as rebuttal of presumption, in view of Kumar Exports (supra). The complainant is only required to prove the following facts in order to bring home prosecution for offence under Section 138, namely: a) That cheque was issued; b) The same was presented; c) It was dishonoured, on presentation; d) A notice, in terms of provisions of NI Act was served on the person, to be made liable; e) Despite service of notice, neither any payment was made nor any other obligations, if any, were complied within 15 days from date of receipt of notice. [refer NK Wahi Vs. Shekhar Singh and Ors. reported in (2007) 9 SCC 481] And which facts are held to be established by the complainant. 15. Though accused has relied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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