TMI Blog2021 (8) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory rebuttal presumption. Since Ex. P3 is admitted, the presumption is in favour of the complainant. Admittedly, the initial presumption is in favour of the complainant and reverse onus clauses become operative and obligations shifts upon the accused to rebut the said presumption. In the instant case also, the accused by way of cross examining the complainant has exposed him and that itself establishes that presumption is rebutted - The complainant though running a finance company, but, he has advanced a huge loan to accused in his individual capacity. Secondly, there is no evidence to prove that he was possessing such a huge amount in his house and further it is hard to accept that he has advanced such a huge amount of ₹ 4,25,000/- as a hand loan to accused without charging any interest that too when the accused was a defaulter in respect of loan obtained by him in Saptagiri Finance Company. Under these circumstances, looking to the facts and circumstances of the case, it is evident that the complainant has failed to establish that the cheque was issued towards discharge of legally enforceable debt so as to attract the ingredients of Section 138 of N.I. Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2013, the complainant has got issued a legal notice to the accused making demand for repayment of amount covered under the cheque and notice was served on the accused, but, he failed to make any payment. Hence, it is alleged that the accused has cheated the complainant by issuing a cheque having knowledge that he had no sufficient funds and hence, it is alleged that he has committed an offence under Section 138 of N.I. Act. In this regard, the complainant has lodged a complaint under Section 200 of Cr.P.C. against the accused. 4. Thereafter, the learned Magistrate has taken cognizance and has recorded the sworn statement of the complainant. After perusing the records, he found that there is sufficient material evidence as against the accused and hence, issued process against the accused. The accused has appeared before the Magistrate in pursuance of the summons and was enlarged on bail. The plea was recorded and the accused has pleaded not guilty. Thereafter, the complainant himself got examined as PW. 1 and one witness was examined on his behalf as PW. 2. He has also placed reliance on nine documents as Exs. P1 to P9. Then, the statement of the accused under Section 313 of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant and sought for allowing the appeal by setting aside the impugned judgment by convicting the accused/respondent herein. 8. Per contra, the learned counsel for the respondent/accused has supported the impugned judgment of the learned Magistrate and he would contend that in paragraph Nos. 18 and 19 of the impugned judgment, the learned Magistrate has discussed the issue in detail. He further contended that there is absolutely no date on which the amount was lent to accused and even the same is missing in the complaint and further, in the legal notice, execution of Exs. P1 and P2 were also not referred and the accused has not admitted execution of Exs. P1 and P2. He would further submit that the complainant is required to prove his case beyond all reasonable doubts, but, rebuttal is only on the basis of preponderance of probability. He would further submit that the complainant is a Banker and he is in the habit of doing money lending business and in this context, he has placed reliance on Exs. D1 and D3, which establish that he is a money lender and as a security, he used to take cheques and in the instant case, the rebuttal is established. Hence, he would argue that the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the complainant took a blank cheque as a security for the interest part. Hence, he has disputed the debt of ₹ 4,25,000/-. 13. It is an undisputed fact that the cheque belongs to the accused and there is no dispute regarding signature on the cheque. Hence, the presumption under Section 139 of N.I. Act is available to the accused as observed by the Hon'ble Apex Court in the case of Rangappa vs. Mohan reported in AIR 2010 SC 1898. The presumption regarding existence of legally enforceable debt or liability is a rebuttal presumption. It is also evident that the accused for rebutting the presumption, need not enter into witness box, but, can rebut the presumption on the basis of the available materials placed on record. Apart from that, it is also important to note here that the complainant is required to prove his case beyond all reasonable doubts. But, for rebuttal, the same standard is not applicable and the accused is required to rebut the presumption on the basis of preponderance of probability. The presumption under Section 139 of N.I. Act is a statutory rebuttal presumption. Since Ex. P3 is admitted, the presumption is in favour of the complainant. At the same t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se friends and there were no financial transactions between them. Under such circumstances, it is hard to accept that the complainant has advanced such a huge amount to the accused without any interest being charged. 15. In the further cross examination, he admitted that normally such a huge amount would be kept in Bank, but, he claims that he has kept in the house for construction of the house. But, no evidence is placed to show that he was constructing any house. He has also not produced his Bank statements to show his financial status. 16. Apart from that, Exs. P1 and P2 were disputed by the accused. It is also important to note here that that Exs. P1 and P2 were not produced along with the complaint by the complainant, but, they were produced at the time of giving evidence by the complainant. The complainant claims that he is a partner in finance company, but, he denied that he is doing money lending business. He has also specifically asserted that except accused, he has not advanced any hand loan to anybody else. However, Exs. D1 and D3 disclose that he had advanced hand loan of ₹ 3,50,000/- to one Lalitha W/o. Annegouda. These Exs. D1 and D3 are the complaints fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lending business illegally without licence. Admittedly, the accused has denied his signature on Exs. P1 and P2. The complainant has not made any efforts to get the signature of PW. 2 marked and he identifying the signature of accused on Exs. P1 and P2 does not have any relevancy at all as admittedly Exs. P1 and P2 were signed in his absence. Apart from that, in Ex. P5-legal notice, the complainant has nowhere asserted as to in whose presence, the money was lent to the accused, but, for the first time it was referred in the complaint. 18. Further, Ex. P3 is dated 02.11.2012 and for a period of two years, the complainant has not even issued any legal notice and it is hard to accept that he being a financer, he kept mum without demanding interest for two years. Hence, it is apparent from the conduct of the complainant that the loan was not for ₹ 4,25,000/- and therefore he kept mum and the hand loan ought to have been for lessor amount and the figures were entered at higher rate in order to adjust with interest. This is the only probable inference which can be drawn considering the conduct of the complainant as he is doing money lending business without any authority. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erse onus clauses become operative and obligations shifts upon the accused to rebut the said presumption. In the instant case also, the accused by way of cross examining the complainant has exposed him and that itself establishes that presumption is rebutted. Hence, the principles enunciated in the above cited decision does not come to the aid of the complainant in any way. He has further placed reliance on a decision reported in 2019 (2) SCCrJ 381 (SC) [M/s. Shree Daneshwari Traders vs. Sanjay Jain and Another]. The facts and circumstances were again entirely different and there, the presumption under Section 139 of N.I. Act was not rebutted by the accused. But, in the instant case, the presumption was rebutted by the accused on the basis of the materials placed on record. Hence, the principles enunciated in the above cited decision does not come to the aid of the complainant in any way. Admittedly, the accused need not enter into witness box to rebut the said presumption and he can rebut the presumption on the basis of available records also. Under such circumstances, both the citations relied upon by the learned counsel for the appellant/complainant will not assist the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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