TMI Blog2021 (7) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... o doubt, a presumption regarding legally enforceable debt is formed in favour of the accused as observed above. However, the said presumption is rebuttable. For rebutting the said presumption, it is not necessary for the accused either to enter the witness box and to lead his evidence or examine any witness or even to produce any documentary proof in his support. Suffice for him to make a case of preponderance of probabilities in his favour to rebut the presumption formed in favour of the complainant under Section 139 of N.I. Act - The material contradiction that has been brought out in the case of the complainant would dilute the case of the complainant, at the same time, make out a preponderance of probabilities in favour of the accused. This aspect both the trial Court, as well as the Sessions Judge's Court have failed to observe. The impugned judgments to be considered as perverse and suffering with infirmity - Petition allowed. - Criminal Revision Petition No. 1097 of 2017 - - - Dated:- 6-7-2021 - Dr. H. B. Prabhakara Sastry , J. For the Appellant : Sachin B. S. , Advocate For the Respondents : Pratheep K. C. , Advocate ORDER Dr. H. B. Prabhaka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed, neither any witness was examined nor any documents were marked. The trial Court after recording the evidence led before it and hearing both side, by its impugned judgment dated 15.09.2015, convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for a period of one year and to pay fine of ₹ 1,58,000/-, and in default of payment of fine amount, to undergo simple imprisonment for a period of six months. Challenging the said judgment of conviction passed by the trial Court, the accused preferred an appeal in Criminal Appeal No. 65/2015, before the learned Sessions Judge's Court, which, after hearing both side, by its impugned judgment dated 08.09.2017, dismissed the appeal filed by the accused, while confirming the impugned judgment of conviction and order on sentence passed by the trial Court. Being aggrieved by the judgments of conviction and order on sentence, the accused has preferred this revision petition. 6. The trial Court and Sessions Judge's Court's records were called for and the same are placed before this Court. 7. Though this matter is listed for admission, with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed fails to pay the cheque amount despite issuance of notice upon him within the statutory period demanding the payment of the cheque amount, then, a presumption about legally enforceable debt under Section 139 of N.I. Act forms in favour of the complainant. 12. It is not in dispute that the accused and the complainant were known to each other. The statement made to that effect by PW-1 in his cross-examination has not been denied from the accused side. It is also not in dispute that the accused is the drawer of the cheque at Ex. P-1 and the said cheque came to be returned when presented for realisation by the complainant for the reason of insufficiency of funds as evidenced in the cheque return memo at Ex. P-2. It is also not in dispute that demanding the cheque amount, the complainant had issued a legal notice to the accused as evidenced in Ex. P-4. The postal acknowledgement evidencing the service of notice upon the accused is at Ex. P-6. Admittedly, the accused has neither replied to the said legal notice nor paid the cheque amount demanded in the legal notice. Thus, a presumption under Section 139 of N.I. Act regarding the existence of legally enforceable debt forms in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness that the complainant did not have financial capacity to lend the alleged loan amount. As such, the undenied evidence of PW-1 would lead to an inference that he had no financial incapacity to lend a sum of ₹ 1,25,000/-. As such, the said argument of learned counsel for the petitioner is not acceptable. The second and last point of argument of learned counsel for the petitioner is that there are contradictions in the stand of the complainant about the date of payment of the loan and also the mode of payment of the loan. According to the learned counsel for the petitioner, there is material variation in the complaint and the evidence of the complainant on these aspects. However, learned counsel for the respondent submitted that since the cheque at Ex. P-1 forms a presumption in favour of the complainant, the alleged variation would not come in the way of the complainant proving his case. 16. The complainant in his complaint, as well in his examination-in-chief as PW-1 has stated that the loan was given by him to the accused in the month of July 2012. He has not given any specific day of the month as to the date on which the alleged loan was given. The month is also st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above. However, the said presumption is rebuttable. For rebutting the said presumption, it is not necessary for the accused either to enter the witness box and to lead his evidence or examine any witness or even to produce any documentary proof in his support. Suffice for him to make a case of preponderance of probabilities in his favour to rebut the presumption formed in favour of the complainant under Section 139 of N.I. Act. In this case, the accused by eliciting certain material contradictions in the case of the complainant could able to imbibe a suspicion in the case of the complainant regarding the alleged transaction, coupled with the defence taken by the accused that he had given the said cheque to one Sri. Chandrashekar of Shanivarasanthe, however, the said Chandrashekar has given that cheque to the complainant and got the case instituted against the accused which further weakens the case of the complainant even though the accused has not examined the said Chandrashekar of Shanivarasanthe. The material contradiction that has been brought out in the case of the complainant would dilute the case of the complainant, at the same time, make out a preponderance of probabilitie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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