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TMI Blog2017 (4) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... g cheque No.003675 drawn on Corporation Bank, Channarayapatna Branch for a sum of Rs. 3,50,000/-. The complainant presented the cheque for encashment on 16.6.2006, but it was dishonoured with the endorsement "insufficient fund". Despite service of notice through RPAD, the accused did not repay the loan amount. 4. On presentation of the complaint, the learned Trial Court registered the criminal case, accused was procured and he pleaded not guilty. The complainant examined herself as PW-1 and marked 7 documents as Exs.P1 to P7. The statement of the accused under Section 313 of Cr.P.C. was recorded and he denied the incriminating evidence appearing against him in the statements of complainant's witnesses. Defence evidence was let in through the evidence of DWs-1 to 3 and three documents were marked as Exs.D1 to D3. After giving audience to both, learned Trial Judge convicted the accused. 5. Sri.Venkatesh R. Bhagat, learned Counsel appearing for the petitioner/accused assailing the judgment of Courts below submits, the amount involved in the cheque transaction was Rs. 3,50,000/-, which is quite a heavy amount to be passed on without a documentary proof. The courts below overlooke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The cheque was not dishonoured on the ground of not tallying but on the ground of insufficient funds. The accused did not make any attempt to subject the cheque for scientific examination. Much against his stand in his reply notice to the effect that he is not the owner/Proprietor/partner of the shop, during the trial, he took a defence that the complainant had matrimonial dispute with her husband and insisted him to marry her, which was refused by him and the complainant used to sit in his shop during lunch hours alone and at that time, she has stolen the cheque, etc. During the examination-in-chief, he stated that the complainant threatened him during 2005 of dragging him to the criminal case by using the cheque signed by him, if he does not agree to marry her. That confirms his knowledge about possibility of criminal prosecution on the basis of cheque, in the year 2005 itself. Till issuing legal notice during 2006, no step was taken by him in respect of his stolen cheque. Another fold of his defence was, he along with others had formed an Association for chit business and in that connection, he had issued cheque to DW-2 and DW-2 returned the cheque after the transaction was clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount did not reach the complainant. Thus, financial capacity of the complainant was accepted by the courts below. 10. The defence that parties were in intimate relationship with each other coincides with the case of complainant that without getting documentation, the amount was lent to the accused. Of course, for a naked eye, the first number '3' appears to have been written with different pen pressure and ink. But at the same time, it is to be noted that author of the cheque while writing the figures in the box, why would he leave exact space, so that at a later stage, someone can implant figure '3' before '50,000'. Having admitted the fact that the cheque bears his signature and issued from his account, the complainant never made attempt to seek scientific evidence to disprove the case of the complainant. It was the case of the complainant that the entire cheque is in the handwriting of the accused. It was never the case of the complainant that the accused wrote the cheque in her presence. Thus, the probability of the complainant tampering the cheque does not find a base. 11. Coming to the contention that since the alleged loan transaction was not by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant was not willing for divorce by mutual consent. A cheque said to have been issued by the accused in respect of a chit transaction allegedly along with that of the cheque in question in this case was also placed by him. But this piece of evidence fail to choke the presumption flowing in favour of holder of the cheque after initial burden was discharged by the complainant by her evidence. The eventuality was, statutory presumption under Section 118(a) of the Act that cheque was issued towards consideration received and next presumption under Section 139 of the Act that there existed a legally enforceable debt came into play. 13. In Krishna Janardhan Bhat's case (supra) at para-34 it was observed thus: "34. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course 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 defendant- accused cannot be expected to discharge an unduly high standard or proof. 28. 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 existe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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