TMI Blog2021 (7) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... istence of legally enforceable debt or liability and it is for the accused to rebut the same. In the present case, as the accused has categorically admitted issuance of the cheque-Ex. P.1. He took a specific defence that the cheque in question was obtained by the complainant by exercising force and that the same was a blank cheque. The complainant misused the blank cheque and filed a false complaint. Even though a specific defence is taken by the accused, he has not probabilised the same. When the accused admits issuance of the cheque in favour of the complainant, the presumption under Section 139 of N.I. Act arises and unless the accused rebuts the presumption, he is liable for conviction. The impugned judgment of acquittal passed by the trial Court deserves to be set aside - criminal appeal allowed. - Criminal Appeal No. 100375/2018 - - - Dated:- 5-7-2021 - M. G. Uma , J. For the Appellant : Rajashekhar Burji, Advocate For the Respondents : Mahantesh S. Hiremath, Advocate JUDGMENT M.G. Uma, J. 1. The appellant/complainant is before this Court praying to set aside the impugned judgment of acquittal dated 20.12.2017 passed in C.C. No. 50/2012 on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The trial Court after taking into consideration all these materials on record, came to the conclusion that the complainant has not proved the guilt of the accused for the offence punishable under Section 138 of N.I. Act and accordingly the accused was acquitted. Being aggrieved by the said judgment of acquittal passed by the trial Court, the complainant has preferred this appeal. 6. Heard Sri. Rajashekhar Burji, learned counsel for the appellant and Sri. Mahantesh S. Hiremath, learned counsel for the respondent. 7. Perused the materials on record. In view of the rival contentions, the following point would arise for my consideration: Whether the impugned judgment of acquittal passed by the trial Court calls for interference by this Court? 8. My answer to the above point is in the 'Affirmative' for the following: REASONS 9. It is the contention of the complainant that he had paid ₹ 2,75,000/- to the accused on his promise to provide gangman for cutting sugarcane and transporting the same to the sugarcane factory. But since he had not provided the gangman as agreed, the complainant demanded to repay the amount, for which the accused issued th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the accused paid ₹ 10,000/- to the complainant on 22.01.2010 but the complainant had not returned the cheque in question. Now the very same cheque is misused by the complainant. Therefore, it is stated in the reply notice that there is no question of repayment of the cheque amount once again. 14. The defence taken by the accused during cross-examination of PW. 1 and in the reply notice marked as Ex. P.5 assumes importance in considering the contentions of the parties. It is the specific contention taken by the accused that only a sum of ₹ 10,000/- was lent by the complainant and not ₹ 2,75,000/- as contended by him. Further, the cheque in question was got executed forcibly by the complainant. Therefore, it is clear that the accused has never disputed issuance of the cheque-Ex. P.1. On the other hand, it is his specific contention that the same was got executed by exercising force. 15. The accused has never chosen to cross-examine PW. 2. Even though he cross-examined PW. 1 nothing has been elicited from the complainant to disbelieve his version. On the other hand, it is suggested that the loan amount was given to Kashim Shek and not to the accused. The sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 defence and it is conceivable that in some c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), has not applied the ratio laid down therein to the facts of the case. The trial court observed that the accused had admitted lending of hand loan of ₹ 10,000/- and issuance of a blank cheque as security. Under such circumstances, the complainant is not successful in proving that he had issued the cheque for ₹ 2,75,000/-. The trial Court again referred to the decision in Krishna Janardhan Bhat (supra) to hold that the accused is not required to step into the witness box and he may discharge his burden on the basis of the materials already brought on record in the matter of rebutting the presumption. This position of law is not disputed, but however in the present case the accused has never rebutted the presumption during the cross-examination of PW. 1 or by cross-examining PW. 2 or by placing any materials before the Court in support of his contention or by examining himself by stepping into the witness box. Under such circumstances, the impugned judgment of acquittal passed by the trial Court deserves to be set aside. Hence, I answer the above point in the affirmative. 23. In view of the above, I proceed to pass the following: ORDER Criminal appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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