TMI Blog2019 (4) TMI 1984X X X X Extracts X X X X X X X X Extracts X X X X ..... ong association and he had trusted the complainant to the extent of leaving his belongings at his house including signed cheque leaves. When the accused has initially denied the signature in the cheque, he should have at least placed some material to substantiate his defence - As far as the loss of cheque leaves, it is the case of the complainant that after 2011 election he and the complainant were fallen out. If it is so, the cheques should have been taken away by the complainant before the year 2011, whereas the cheque is dated 01.10.2012. Therefore, from May 2011 i.e., the general election till October 2012, the accused has not given any police complaint or directed the bank to stop the payment. Therefore, both the defence taken by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The respondent sent a reply dated 04.01.2013 denied the liability and alleged that the deeds, important papers including cheques and hand bag left in the premises of the complainant have been misused by the complainant. 3. With this set of facts, the parties appeared before the Trial Court and contested the case. On behalf of the complainant, 4 witnesses were examined and 8 Exhibits were marked. In defence, the accused mounted the witness box and examined himself as DW.1. The Trial Court on considering the evidence placed before it, held that the prima facie burden of proving the cheque that has been issued for discharge of debt, was proved by the complainant. Whereas, the accused has failed to rebut the presumption and therefore, con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geance, the cheque was misused by the complainant. The complainant having produced his Income Tax Returns which reflects the loan given to the accused and the failure of the accused to discharge the burden was not properly considered by the Lower Appellate Court. The Lower Appellate Court pointed out that the cheque being a non MICR cheque, when computerised cheque was in practice even few years earlier to the date of cheque, it has disbelieved that the cheque was issued for discharge of any enforceable liability. 6. The learned counsel for the revision petitioner would contend that there is no bar for issuing non MICR cheque even after introduction of computerised cheque and the bank officials had deposed before the Court that non MICR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is subsequent to filing of the criminal complaint and mere IT returns will not substantiate the factum of lending ₹ 5 lakhs. The annual income of the complainant as shown in the Income Tax Returns so far does not indicate that he his capable of advancing loan of ₹ 5,00,000/. 8. Heard the learned counsel and perused the records. 9. The presumption under Section 139 of Negotiable Instruments Act is a rebuttal presumption and such rebuttal need not be beyond any reasonable doubt even preponderance of probability is sufficient. When we look out the facts of the case, whether the drawer of the cheque has rebutted the presumption with any degree of probability, we find except the reply notice and his oral evidence, there is no m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve any purpose. In the facts of this case, a mere denial defence has been taken by the accused. Unfortunately the Lower Appellate Court has carried away by illusionary defenc,. though the trial Court had rightly held the accused guilty for the commission of the offence. Hence, the judgment of the Lower Appellate Court is said to be perverse and is liable to be set aside. 12. Accordingly, the Appeal is allowed. The judgment of the Lower Appellate Court in Crl.A.No.56 of 2014 dated 24.09.2014 is set aside. 13. However, considering the length of time taken for disposal of this matter and the nature of the transaction and relationship between the complainant and the accused, this Court is of the view that the sentence imposed on the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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