TMI Blog2021 (6) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... en the burden having been discharged, the evidential burden had shifted and moved on to the complainant which, he had failed to prove and therefore, the presumption under Section 118(a) and 139 of the Negotiable Instrument Act will not come again to the aid or rescue of the complainant - The Courts below have failed to appreciate the evidences on record with proper perspectives and have erred in convicting the petitioner/accused on perverse finding. Necessarily, the petitioner/accused has to be acquitted. The Criminal Revision case is Allowed. - Crl.R.C.No.599 of 2013 - - - Dated:- 11-3-2021 - THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA For the Petitioner : Mr.D.Arun Kumar (Physical Hearing) for M.N.Balakrishnan For the Respondent : Mr.Saravana Kumar Legal Aid Counsel through V.C. ORDER (The case has been heard through video conference) This Criminal Revision has been preferred challenging the Judgement of conviction dated 28.02.2013 passed by the I Additional District and Sessions Judge, Coimbatore, in C.A.No.305 of 2012 confirming the Judgement and conviction passed by the learned Judicial Magistrate, Fast Track Court, Magisterial Level -II, Coimb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Challenging the conviction and sentence, the accused had filed an appeal in C.A.No.305 of 2012 and the learned Judge by Judgement dated 28.02.2013, had dismissed the appeal while confirming the Judgement passed by the trial Court. Against which, the present Criminal Revision Petition has been filed. 8. Heard Mr.Arun Kumar, learned Counsel appearing for the accused and Mr.S.Saravanakumar, Legal Aid Counsel, appearing for the respondent. 9. The learned Counsel for the accused would submit that as per the complainant's legal notice, the complainant is stated to be a Tailor by profession and he had acquaintance with the accused, whereas it is the case of the accused that the accused does not know him and that he is a stranger to him and the alleged cheque was actually handed over to one Shanthakumar in respect of a financial dealing between the accused and the said Shanthakumar and that the said Shanthakumar has handed over the cheque to the complainant and by misusing a cheque, the false complaint has been filed against the petitioner/accused. The accused had further explained the reason and the manner in which the cheque had got into the hands of the said Shanthakumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e standard of proof for rebutting the presumption under Section 139 of Negotiable Instrument Act is that of preponderance of the probability and once the accused rebutts the presumption, the burden and onus shifts on the complainant to prove that he has paid the amount to the accused, whereas in this case, the complainant has failed to prove his case either by oral or by documentary evidence that he had paid the amount of ₹ 6 lakhs to the accused. Further, the Courts below have failed to take into consideration the evidence let in by the accused that the accused was not present at Coimbatore on the alleged date of receiving the amount and handing over the post dated cheque i.e. 05.01.2009. He would submit that the trial Court without properly analysing the materials on record have rendered perverse findings. The learned Counsel for the accused would further submit that the accused had while cross examining the complainant, by marking Exs.D3 to D6 proved that the complainant without having financial capacity, by misusing the cheques given to other person had filed similar complaints against two other persons claiming ₹ 6 lakhs each from them, thereby totalling to ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of ₹ 4,50,000/- to Balana Gouda towards sale consideration. Payment of ₹ 4,50,000/- being admitted in the year 2010 and further payment of loan of ₹ 50,000/- with regard to which complaint No. 119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex. D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of ₹ 18 lakhs. During his cross-examination, when financial capacity to pay ₹ 6 lakhs to the Accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the Accused, which shifted the burden on the complainant to prove his financial capacity and other facts. 25. There was another evidence on the record, i.e., copy of plaint in O.S. No. 148 of 2011 filed by the complainant for recovery of loan of ₹ 7 lakhs given to one Balana Gouda in December, 2009. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of long standing friendship and knowing the difficulties, which is being faced by the Accused the complainant agreed to lend hand loan to meet out the financial difficulties of the Accused and accordingly the Complainant lend hand loan ₹ 6,00,000/- (Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honored. But to the surprise of the Complainant on presentation of the same for collection through his Bank the Cheque was returned by the Bank with an endorsement Funds Insufficient on 01-03-2012. 27. Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding date on which loan was given on one side and what was said in cross-examination in other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the Accused did not reply the notice denying the execution of cheque or legal liability. Even before the trial court, Appellant-Accused has not denied his signature on the cheque. 28. We are of the view that when evidence was led before the Court to indicate that apart from loan of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Counsel for the accused would further reiterate that the complainant having admitted and marked the reply notice as Ex.P5 and having stated that the amounts were advanced/transferred through bank transactions, ought to have proved it especially, when the burden having shifted not only by the mere denial of the accused, but by adducing sufficient evidence to prove that the complainant was not having sufficient financial capacity to lend such a huge amount. 10. In reply, the learned Counsel appearing for the complainant would submit that it is the case of the complainant that the accused is known to him and based on the acquaintance, the accused had borrowed a sum of ₹ 6 lakhs from him on 05.01.2009 for his transport business and family expenses and on the same day, he had issued a post dated cheque dated 09.03.2009 for a sum ₹ 6 lakhs. Thereafter, the cheque was presented for collection on 09.03.2009 and it was dishonoured on 14.03.2009 for the reason insufficient funds and thereby, within the statutory period, the complainant had issued a legal notice to the accused and it was also served on the accused. However, the accused did not reply immediately and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieu of the settlement, the accused had to pay ₹ 2 lakhs to the said Shanthakumar which was agreed to be paid as per the agreement of settlement. Thereby, as a security, the cheque was handed over to the said Shanthakumar by the accused. Though in the initial part of cross examination, the complainant had denied having known the said Shanthakumar, in the later part of the cross examination, he has accepted that the said Shanthakumar and he are living very close by. Further, in this case, the complainant had categorically admitted that all the money transactions by him were done through bank transactions only and that he was having only one bank account, whereas at the later point of time, he had stated that the amounts were paid by his friends. 14. Insofar as the accused is concerned, the complainant had stated that the entire transactions with the accused had been done through bank accounts, whereas when confronted with Exs.D3 to D6 with regard to the cases registered against one Sudarsan and Devi Priya, and Ex.D7 (the bank statement of the complainant for the period between 01.09.2008 and 30.04.2009) the complainant had stated that the amounts were given by his friends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. 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 cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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