TMI Blog2021 (3) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... mption by leading an adequate and satisfactory evidence to substantiate his contention in defence to the prosecution. Although it is not necessary for the accused to enter the witness box, the burden of proof is required to be discharged by adducing satisfactory evidence to prove that the cheque in question was not issued for discharge of any legally enforceable debt. Merely for the reason that he did not adduce any evidence to prove a negative fact, no adverse inference can be drawn against him. The degree of proof expected from the accused is not as rigorous as that of the complainant. He can discharge his onus by making dents in the case of the complainant. Here, it seems that that has been attempted by the 1st respondent. Even though the financial capacity of the appellant stands disputed by the 1st respondent, the appellant has not taken care in adducing evidence supporting his ability to pay so much money. The complainant is expected to prove his case to the hilt. He cannot take advantage of the failure on the part of the accused respondent. This Court is not persuaded to interfere with the finding of the trial court, which is liable to be confirmed - Appeal dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel on both sides. The trial court records were summoned and perused. 5. According to the learned counsel for the appellant, though the statutory notice was duly served on the 1st respondent, he did not give a reply; thereafter, even though he disputed the financial capacity of the appellant to lend that much money, no evidence was adduced nor a probable version was urged before court, to rebut the presumption available in favour of the appellant. After having admitted the issuance of the Ext.P1 cheque he cannot be heard to say that he had borrowed only ₹ 30,000/- from the appellant. In this connection, the learned counsel placed reliance on the decision reported in Bir Singh v. Mukesh Kumar [AIR 2019 SC 2446]. Regarding the contention that the appellant had no financial capability to lend so much money, the learned counsel placed reliance on an unreported decision of the Karnataka High Court in Crl.A. No.2109/2017 and also in Rohitbhai Jivanlal Patel v. State of Gujarat and another [AIR 2019 SC 1876]. The counsel concluded that the appellant is financially sound enough to lend that much money; that the presumption is in his favour and thus, the trial court erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be discerned from the complaint. Whatever it may be, despite the fact that the Ext.P3 lawyer notice was not responded, nor the 1st respondent entered the box, the very case of the 1st respondent is that the appellant has no capacity to arrange so much money, that Ext.P1 was issued only in consideration of ₹ 30,000/- borrowed by him. 9. Thus, it is the common case that the Ext.P1 cheque was executed and issued by the 1st respondent to the appellant in consideration of a loan transaction. Sections 20, 87 and 139 of the Act make it clear that unless the presumption is rebutted, it can be taken that the cheque was issued in discharge of a legally enforceable liability. Referring to the decision in Bir Sing, quoted supra, it must be stated that even if a signed blank cheque is issued towards a payment, the payee is entitled to fill up the amount and other particulars, that will not invalidate the cheque. But here, the 1st respondent has a clear case that the appellant had no capacity to arrange so much money. Now the question is whether, the reason that he did not respond the lawyer notice nor did enter the box, should an adverse inference be drawn against him. Similarl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived it for the discharge of existing debt or liability. Then the burden is on the accused, in view of the statutory presumption, to rebut the presumption by leading an adequate and satisfactory evidence to substantiate his contention in defence to the prosecution. Although it is not necessary for the accused to enter the witness box, the burden of proof is required to be discharged by adducing satisfactory evidence to prove that the cheque in question was not issued for discharge of any legally enforceable debt. Merely for the reason that he did not adduce any evidence to prove a negative fact, no adverse inference can be drawn against him. The degree of proof expected from the accused is not as rigorous as that of the complainant. He can discharge his onus by making dents in the case of the complainant. Here, it seems that that has been attempted by the 1st respondent. 12. It has come out from the oral testimony of PW1 complainant that he is a tailor by profession, earning a monthly income of ₹ 2,000/-. He has to take care of his family with two children for whom he has to earmark ₹ 750/- from the monthly income. He has no other source of income. Even though he h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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