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TMI Blog2021 (2) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... quipment at Vijayapur and he was carrying on the business in the name of M/s Rajashree Agro Services. The accused and complainant were close friends and there were many transactions between them. The accused purchased tractor from the complainant. He used to take hand loan from the complainant for his family necessity and return back. It is the case of the complainant that, on 11-06- 2003 the accused approached the complainant with a request to lend hand loan of Rs. 52,000/- for his family needs and for repair of Tractor. Looking to the previous transaction the complainant agreed to pay Rs. 52,000/- and as security of the said amount, he issued post dated cheque dated: 26-07-2003 drawn in the Grameen Bank, branch Aski Taluka Sindagi bearing cheque No0136305 for Rs. 52,000/-. He also executed a 'Kaigad patra' i.e. "Hand loan deed" for the same amount. As requested by the accused, the complainant presented said cheque dated: 26-07-2003 for encashment, but the same was returned dishonored with the endorsement that the funds insufficient. The complainant issued legal notice on 28-11-2003 calling upon the accused to pay the amount, but the notice was returned with endorsement a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. The evidence of DW.2 will not help the accused. With these main grounds he has prayed to set aside the Judgment of acquittal and convict the accused. 10. Heard Sri.S.S.Mamdapur learned counsel for the appellant/complainant and Sri.Ravi G.Madbhavi learned counsel for accused/respondent. 11. The learned counsel for appellant argued that, the execution of cheque and promissory note i.e. hand loan deed is admitted by the accused. Suit is decreed on hand loan deed document is also admitted. There is evidence of PW.1 which clearly supports the document. Apart from that, Ex.P.7 came into existence only in the year 2003. Therefore, there is no question of creating of execution of such document in the year 2001. Ex.P.1 and Ex.P.7 are admitted by the accused. Legal notice endorsement clearly shows that, it is refused. Said documents are not prior to purchase but they are subsequent to purchase. It is not the case of the accused that, it is forged document, nor he has set up such a defense nor it was sent for any expert opinion. The evidence of DW.2 is vague and general one. With these grounds the learned counsel for appellant prays to convict the accused. 12. As against this, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds interference by this court? 15. My answer to the above points is as under for the reasons given below. 16. The main contentions in this case are that, the accused has admitted the issuance of cheque. It is also undisputed that the accused has purchased a tractor from M/s Rajashree Agro Services Ltd. Bijapur and the complainant was the proprietor of the said agency. It is also not disputed that, in the month of January 2001 accused approached the complainant for purchase of Mahindra Tractor and accused states that for that purpose he handed over a blank bond paper and a cheque on the condition that after receipt of the said tractor price the same shall be returned to him. According to the defense of the respondent/accused he has repaid the amount but the cheque is not returned and it is misused by the complainant. 17. In view of these contention let me consider the evidence placed on record and Judgment of the trial court. 18. In order to prove his case the complainant got examined himself as PW.1. In his examination chief affidavit he has stated that, he was doing business of tractor and its spare parts and the accused was his friend he also purchased tractor. He used to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroborate his evidence the complainant got examined one Siddagondappa as PW.2 who was the bond writer of that Hand loan Bond Ex.P.7. PW.2 has stated that, on 11-06-2003 as stated by accused he has written a bond paper as per Ex.P.7(kaigada patra). PW.2 has identified his signature and also signature of accused as per Ex.P.7(c) & (d). PW.2 has also stated that other two witnesses have signed and one of the witness has put his thumb impression. He has also stated that, after writing Ex.P.7 hand loan deed, he has readover the same to the accused. This witness was cross-examined at length but nothing is elicited in his cross-examination so as to disbelieve his evidence. So his evidence corroborates the evidence of PW.1. Ex.P.7 is certified copy of the bond paper which is issued from the State Bank of Mysore branch Bijapur on 05-06- 2003 for Rs. 100/-. On perusing Ex.P.7 hand loan deed, it is evident that, it was not all in existence in the year 2001 as contended by the accused. The Ex.P.7 clearly indicates that, the accused has borrowed hand loan of Rs. 52,000/- for his personal necessities and tractor repair and he has issued the cheque bearing No.0136305 for Rs. 52,000/- dated: 26-07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. 23. The Hon'ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flaw on the part of the Trial Court, the High Court cannot be said to have acted illegally or having exceeded its jurisdiction in reversing the judgment of acquittal. As noticed hereinabove, in the present matter, the High Court has conscientiously and carefully taken into consideration the views of the Trial Court and after examining the evidence on record as a whole, found that the findings of the Trial Court are vitiated by perversity. Hence, interference by the High Court was inevitable; rather had to be made for just and proper decision of the matter." So in view of the principles stated in the above decision the burden shifts on the accused to rebut the presumption available under section 139 of the Negotiable Instrument Act. 24. The accused can rebut the presumption by two ways one by cross-examining the complainant and the other is by leading his defense evidence. 25. The object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Despite civil remedy, Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is type of evidence cannot be believed. It is not that the accused is not knowing the Bank transaction. He frequently met the complainant. He borrowed loan from Bank. That itself shows he is in acquaintance with bank transaction, cheque transaction and accused knew very well the complainant. 30. Accused/DW.1 further admits that, on 13-12-2003 a postman brought the postal cover to his house and enquired his wife, but his wife refused to receive the same as her husband is not in the house, the post man has taken it back. On enquiry with the complainant, accused came to know that it was a demand notice alleging that he has taken hand loan of Rs. 52,000/- 31. It is very pertinent to note that, the postal cover with the demand notice was sent to the address of accused. It was refused according to accused by his wife refused. But he came to know that it was a demand notice for Rs. 52,000/- and a cheque and enquired with complainant but he did not reply the notice. Therefore an adverse inference will have to be drawn against the accused for not replying the said notice. The accused further deposes in his examination in-chief that he approached the complainant with some elderly person an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he counter foil book was with the accused only. He can write what-ever he likes. If at all he has issued cheque with the amount mentioned in them to the persons shown in those counter foils he should have produced the Bank statement to show that, actually those cheques were issued in favour of the persons whose names mentioned in counter foil with the amount mentioned in it. But no such bank statement showing encashment of any such cheques with the amount mentioned in them is forthcoming. It appears that the trial court has also mislead by this document and wrongly considered its evidentiary value. 34. DW.2 is one Hemaraddi. He states in his evidence that, he has also purchased the tractor from complainant agency. He has asked the tractor seller to return the cheque and bond paper. But the said cheque and bond paper was not signed by him. DW.2 has stated that, the complainant has not filed any cheque bounce case against him. DW.2 has clearly stated that, he do not know whether accused has borrowed Rs. 52,000/- in the year 2003 by executing a cheque for return of the said amount. He has expressed his ignorance in this regard. DW.2 has clearly admitted that, he do not know as to wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003. The legal notice sent by complainant to the accused by RPAD which is at Ex.P.5 though admitted by the accused that it came to his address and his house but it was refused. Even after coming to know abound demand notice sent by complainant no reply was given by the accused. The scribe of hand loan deed Ex.P.7 is examined. In the cross-examination of PW.2 nothing is elicited to disbelieve his evidence. If at all there was any forgery of signature of accused on Ex.P.7 as contended by the accused he should have sent the said document for handwriting expert opinion. When a person takes defense of fraud and forgery the burden is on him to prove the same. But the accused has not proved his contention regarding fraud or forgery. The evidence of accused and his witness failed to rebut the presumption arising under the Negotiable Instrument Act. The decision relied by the accused reported in 2018 (2) AKR 440 in case of Branch Manager, PCA & RD Bank Ltd. Belthangady V Suresh Ganapathi Das will not help the accused in any way. In this case, the complainant is not a Bank, nor he maintains any account extract or loan account of the accused in any such natural business or transaction. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 cheque is not disputed by accused, but the trial court has wrongly observed at para No.13 of the Judgment that the complainant has not produced any document in respect of earlier transaction with the accused. Why the complainant should produce the documents in respect of any other transaction when he has not admitted that, he has got any other such documents or transaction with accused. Nothing worth elicited in the cross-examination of this PW.1. Without properly discussing the evidence placed by the complainant and without appreciating it on the sound principles regarding appreciation of evidence in Negotiable Instrument Act cases and not considering the statutory presumption arising in favour of the complainant the trial court has wrongly held that, the evidence adduced by the complainant cannot be accepted. Such observation has no legal basis. It is very strange that at para No.15 of the Judgment the trial court observed that, Ex.D4 the counter foil reveals the name of the persons to whom the cheques were issued by the accused. Further observed at para No.16 that counter foil is maintained by the accused in regular course of his business, so it is relevant and can be relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out considering the sound principles regarding appreciation of evidence in a cheque bounce case the trial court has wrongly come to the conclusion based on Ex.D.4 counter foil and vague and general evidence of DW.2. Finding that the defense taken by the accused is probable and conclusion that the complainant has failed to prove the case beyond reasonable doubt is without any reasons. This finding of the trial court is perverse, illegal and not based on sound principles regarding appreciation of evidence in a cheque bounce case. The learned trial court Judge has given gobye to the principles enunciated by this High Court and the Hon'ble Supreme Court regarding appreciation of the evidence in cheque bounce case, raising presumption and rebutting the presumption. This has resulted in miscarriage of justice and perversity of the finding by the trial court. 43. Normally in a case arising out of the Judgment of acquittal by the trial court the appellate court will not interfere if there is no perversity in finding and if there is other view possible. But here the reasoning and the conclusion arrived by the trial Judge has totally resulted in miscarriage of justice and such a finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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