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TMI Blog2021 (6) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of N.I. Act. It is stated that the complainant and accused were friends and were knowing each other since 12 years. It is contended that the accused approached the complainant during December-2005 and requested for hand loan of Rs. 78,000/- to meet his family necessities. He promised to repay the same within six months. Accordingly, the complainant lent an amount of Rs. 78,000/- and was demanding back the amount frequently. Finally, the accused issued the cheque dated 21.04.2006 bearing No.0423153 drawn on Malaprabha Grameena Bank, Extention Counter, D.C. Compound, Dharwad Branch for Rs. 78,000/- in favour of the complainant towards repayment of the loan amount. The cheque was presented for encashment by the complainant but the same was dishonoured as there was insufficient fund in the account of the accused. The complainant further contended that he issued legal notice to the accused informing him about the dishonour of the cheque and calling upon him to repay the cheque amount. The said notice was not claimed by the accused and has not repaid the cheque amount and thereby he has committed the offence punishable under Section 138 of N.I. Act. 4. The trial Court took cognizan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The trial Court has not considered the facts and circumstances of the case in proper perspective. Therefore, he prays for allowing the appeal by setting aside the impugned judgment of acquittal passed by the trial Court. 7. Per contra, learned counsel for the respondent/accused contended that the complainant has not proved lending of amount of Rs. 78,000/- during December-2005. There are no documents in support of such contention. The accused even though admitted Ex.P.1 as the cheque belongs to him and also admitted his signature found therein, denied that the same was issued by the accused to the complainant towards discharge of any legally recoverable debt. Under such circumstances, heavy burden lies on the complainant to prove his contention. The trial Court properly appreciated the material on record including the oral evidence led by the parties and has arrived at a conclusion and it does not require any interference by this Court. No illegality or perversity is noticed in the impugned judgment of acquittal and therefore, the appeal is to be dismissed as devoid of merits. Accordingly, he prays for dismissal of the appeal. 8. In view of the rival contentions, the following po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction between the two. Witness admitted that he has filed five criminal cases against various persons alleging commission of the offence punishable under Section 138 of N.I. Act but denied the suggestion that he is doing money lending business without any license and he is circulating the black money which is unaccounted. Witness stated that he is not familiar with one Suresh Adiraj and denied the suggestion that that he is his close friend. Witness also denied the suggestion that he is carrying on money lending business through said Suresh Adiraj and he is collecting the interest. Witness further denied the suggestion that he is paying commission at 5% to said Suresh Adiraj on the amount collected by him. Witness denied the suggestion that Ex.P.1 - cheque issued by the accused in favour of said Suresh Adiraj was misused by the complainant. 13. Ex.P.1 is the cheque dated 21.04.2006 bearing No.0423153 drawn on Malaprabha Grameena Bank by the accused in favour of Abdul Razak B Havaldar i.e. the complainant for Rs. 78,000/-. Ex.P.2 is the endorsement issued by Malaprabha Grameena Bank returning the cheque in question as funds insufficient. Ex.P.3 is the copy of the legal notice dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the accused, the said Suresh Adiraj had not repaid the same to the persons from whom he had availed the amount and had committed cheating. Witness stated that he had issued in all four cheques in favour of Suresh Adiraj during 2002 but he is not having any document in support of the same. He pleaded his ignorance whether Suresh Adiraj had availed loan from the complainant. However, he stated that Suresh Adiraj had informed him that he obtained the amount from the complainant and had lent it to the accused. Witness stated that he never borrowed an amount of Rs. 87,000/- from Suresh Adiraj but he had availed only Rs. 22,000/- and repaid it with interest at 10%. Witness stated that he had not issued any notice to Suresh Adiraj calling upon him to return the cheques. He denied the suggestion that he had availed loan from the complainant and had issued Ex.P.1- cheque towards discharge of the same. 16. Accused examined Suresh Adiraj as DW.2. This witness stated that he is not familiar with the complainant, however he knows the accused. He admitted his signature found on Ex.D.1 but stated that he has not written the other contents of the document. This witness was treated hostile and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said loan amount the accused had issued Ex.P.1-cheque. Accused admitted that Ex.P.1-cheque belongs to him and it bears his signature. Even though the accused taken up a defence that he was not knowing the complainant, he was not familiar with him, he had not borrowed any amount from the complainant nor issued Ex.P.1 in his favour, the moment he admits that the cheque relied on by the complainant belongs to him and it bears his signature, presumption under Section 139 of N.I. Act arises. Similarly, Section 118 of N.I. Act gives raise to presumption regarding the consideration, date, time of acceptance, endorsements and that the holder is a holder in due course until the contrary is proved. Therefore, once the accused admits the cheque in question and his signature found therein, the initial burden of proving the contention is discharged by the complainant and it is for the accused to rebut these presumptions by raising the defence and probabalising the same. 20. In this regard, I place reliance on the recent decision of the Hon'ble Apex Court in M/S. Kalamani Tex and Another v. P.Balasubramanian AIR 2021 SC 1308, wherein the Hon'ble Apex Court has held as under: "15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the complainant used to lend the amount through Suresh Adiraj and collect the amount from him. Suresh Adiraj in turn used to get commission at 5%. 24. In the affidavit filed by the accused in lieu of examination-in-chief, it is specifically stated that prior to 2005 he availed loan from Suresh Adiraj agreeing to repay the same with interest at 10% per month and he paid Rs. 26,000/- and got a receipt from the said Suresh Adiraj. At the time of availing the loan the accused had issued two cheques as security and for collateral purpose but Suresh Adiraj had not returned the said cheques in spite of repeated requests. Accused further stated he never borrowed any amount from the complainant. 25. It is pertinent to note that during cross- examination, the accused stated that Suresh Adiraj was obtaining amount from others and was paying to him. However, he reiterated that he is not familiar with the complainant nor he knows about him. He also stated that he has not enquired about the complainant even after filing of the complaint. It is pertinent to note that when there is specific contention of the accused that he was not familiar with the complainant nor he knows him, the tenure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diraj and at that time he had obtained Ex.P.1 - cheque and another cheque. It is specifically stated that the entire amount of Rs. 87,000/- was repaid by the accused and when the balance amount of Rs. 26,000/- was paid, Suresh Adiraj had issued the receipt. When the accused herein demanded to return Ex.P.1-cheque, he had promised to return both the cheques but subsequently he proclaimed that both the cheques were torn by him. It is further stated by the accused herein that he came to know that Suresh Adiraj had not paid the amount to Mr.Havaldar i.e. the complainant herein and subsequently C.C.No.622/2006 i.e. a criminal case before the trial Court, the Judgment of which is impugned in the present case, came to be filed. 28. Contents of this document Ex.D.2 are quite contrary to the defence taken by the accused. This document alone demolishes the defence that complainant is a stranger to the accused and that the accused never borrowed an amount of Rs. 87,000/- nor he had issued Ex.P.1-cheque towards legally recoverable debt. When Ex.D.2 demolishes the defence taken by the accused, the question of reverse burden shifting on the complainant does not arise. Therefore, I am of the opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: "11. The short question which falls for our consideration is whether the High Court erred in reversing the findings of the trial Court in exercise of its powers under Section 378 of CrPC? 12. Having given our thoughtful consideration to the rival submissions, we do not find any valid ground to interfere with the impugned judgment. It is true that the High Court would not reverse an order of acquittal merely on formation of an opinion different than that of the trial Court. It is also trite in law that the High Court ought to have compelling reasons to tinker with an order of acquittal and no such interference would be warranted when there were to be two possible conclusions. Nonetheless, there are numerous decisions of this Court, justifying the invocation of powers by the High Court under Section 378 CrPC, if the trial Court had, inter alia, committed a patent error of law or grave miscarriage of justice or it arrived at a perverse finding of fact. (emphasis supplied) 34. The discussions held above disclose that the trial Court has mechanically proceeded to acquit the accused without appreciating oral and documentary evidence placed before it. It has ignored Ex.D.2 whil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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