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TMI Blog2021 (8) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... as availed a hand loan of Rs. 2,50,000/- by cash to meet his family necessities. He has promised to return the loan within five months. However, he did not return the loan. Subsequently, the accused has issued a cheque bearing No.451471 dated 16.07.2009 for a sum of Rs. 2,50,000/- drawn on Axis Bank Limited, Bengaluru and asked the complainant to present the same. Accordingly, the complainant has presented the cheque through his banker Karnataka Vikas Grameena Bank, APMC Branch, Dharwad. But the said cheque came to be dishonoured for 'insufficient funds' on 18.07.2009. As per the request of the accused, he further presented the cheque on 27.08.2009 and again it was returned for 'insufficient funds'. The same was brought to the notice of the accused, but the accused did not take any steps and neglected to pay the amount. Thereafter, the complainant issued legal notice on 02.09.2009 calling upon the accused to pay the cheque amount. In spite of receipt of notice, the accused neither replied nor complied the same. Hence, the complainant has lodged a private complaint under Section 200 of Cr.P.C. 4. Thereafter, on the basis of the sworn statement and documents produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction of Rs. 1,50,000/-. The trial court has failed to take note of the fact that the said refund of Rs. 1,50,000/- was pertaining to the earlier hand loan transaction. He would further contend that the trial court has also not taken note of the fact that accused has not replied to the legal notice and there is prima facie material and presumption is also in his favour and as such, he would contend that the judgment of acquittal passed by the trial court suffers from infirmities and it is against the settled principles of law. Hence, he would seek for interference by this court and prays for allowing the appeal by setting aside the impugned judgment of the trial court. 8. Per contra, learned counsel for the respondent/accused would contend that the complainant is also used to undertake the work of manufacturing furniture and accused has entrusted the furniture work to him. Initially, it was for Rs. 2,50,000/- and such, he has issued the cheque. He would contend that subsequently D.W.2 who has also got work executed from the complainant revealed that the work is only worth Rs. 1,50,000/-. Hence, the said amount was independently paid with a request to return the cheque o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque was for Rs. 2,50,000/-, i.e., cheque which is under dispute in this case and another cheque sent after one week for Rs. 1,50,000/-, which is admittedly encashed by the complainant. Ex.P1 is the cheque for Rs. 2,50,000/- and Ex.P7 is the statement of account pertaining to the account of the complainant. Exs.P8 and 9 are income tax returns and Ex.P10 is the copy of the civil contractor licence. Ex.D1 is the statement of account belonging to the accused and there is no serious dispute of the fact that the cheque under Ex.P1 was returned for 'insufficient funds'. It is also undisputed fact that the cheque was signed by the accused. Hence, the initial presumption is in favour of the accused under Section 139 of N.I.Act, but however, this statutory presumption is rebuttable presumption. For rebutting the said presumption, the accused need not enter into the witness box and he can rebut the presumption even on the basis of the available material placed on record. 11. A perusal of the evidence of complainant P.W.1, it is evident that he has all along simply asserted that the hand loan was advanced for Rs. 2,50,000/- in the month of April, 2009. The complainant has not disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But it is to be noted here that encashment of the cheque for Rs. 1,50,000/- was subsequent to this transaction. It is alleged that in April 2009, hand loan was advanced, but repayment of Rs. 1,50,000/- was in the month of July 2009 by way of cheque dated 24.07.2009. Hence, it is evident that P.W.2 is giving false evidence only in order to assist the complainant. He does not know any transaction and his own examination-in-chief clearly exposes him as he claimed that hand loan of Rs. 2,50,000/- was advanced as earlier hand loan was repaid which was not the case of the complainant and from records, it is also evident that payment of Rs. 1,50,000/- was subsequent. 13. Learned counsel for the complainant placed reliance Ex.P7(a) wherein it is evident that complainant has withdrawn a sum of Rs. 2,52,000/- on 16.04.2009 from his account. It is to be noted here that the complainant has no where asserted the specific date of advancement of loan. Further, according to him, after withdrawing Rs. 2,52,000/-, a sum of Rs. 2,50,000/- was paid as hand loan, but when he paid it is not forthcoming. This is first time asserted in the arguments. Even if this fact is taken into consideration, then wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,000/- on one occasion and Rs. 2,50,000/- on another occasion as hand loan to the accused, which is not the case made out in the complaint and this is only an improvement when the accused has taken a defence. Apart from that, under the provisions of Income Tax Act, such a transaction should be by way of cheque, but that was also not followed. Even in the income tax returns produced by the complainant, there is no reference of both these transactions of Rs. 2,50,000/- or Rs. 1,50,000/- in respect of hand loan as claimed by the complainant. P.W.1 has also admitted that there is no reference of these transactions in his income tax returns. When the complainant is a contractor, he should have mentioned the said aspect in his income tax returns, but that was not done. Hence, the contention of the complainant that Rs. 2,50,000/- was advanced to the accused by way of hand loan is not acceptable. On the contrary, the defence of the accused that, it was issued towards furniture work and since furniture work was worth Rs. 1,50,000/- only, the same was repaid by subsequent cheque appears to be more possible. The accused need not rebut the presumption on the principles of beyond all reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Apex Court in the case of Basalingappa Vs Mudibasappa reported in (2019) 5 SCC 418. In the said decision, the Hon'ble Apex Court held as follows: "Debt, Financial and Monetary Laws - Negotiable Instruments Act, 1881 0 Ss.118, 138 and 139 - Drawing of presumption under, and how said presumption can be rebutted - Standard of proof - While prosecution must establish its case beyond reasonable doubt, accused to prove a defence must only meet standard of preponderance of probabilities - Principles summarised." 18. The Hon'ble Apex Court has clarified that the prosecution is required to establish its case beyond all reasonable doubt, but accused to prove his defence only by meeting the standard of preponderance of probabilities. Further, it is held that, if the accused has lead a probable defence, then burden would be on the complainant to establish the same. 19. Considering all these facts and circumstances of the case, it is evident that the complainant has failed to establish the existence of legally enforceable debt and accused rebutted the initial statutory presumption available in favour of the complainant. The trial court after marshalling oral and do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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