TMI Blog2021 (11) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant did not mention anything about that episode of issuance of two cheques in his complaint petition or during the examination-in-chief. He did not even explain why those two cheques bearing No.610768 and 610772 were given to him by the accused person. His explanation is fragile and amounts to failure in explaining the episode properly. The respondent [The accused person] has made out a probable case that there was no enforceable debt against him and that he was under no obligation/liability to make payment. It appears more probable that the cheque that has been dishonoured is a security cheque. Therefore, the order of acquittal does not warrant any interference. Appeal dismissed. - CRL APPL. No.13 of 2018 - - - Dated:- 9-11-2021 - HON BLE MR. JUSTICE S. TALAPATRA For Appellant(s) : Mr. B. N. Majumder, Sr. Adv. Mr. R. Saha, Adv. For Respondent(s) : Mr. R. Datta, Adv. Judgment Order This appeal under Section 378 of the Cr.P.C. arises from the judgment and order of acquittal dated 12.06.2018 delivered in Case No. CR (NI) 11 of 2017 by the Judicial Magistrate, 1st Class, Court No.2, Udaipur, Gomati District. 02. The appellant filed the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the said demand notice was received by the respondent on 29.03.2017. It has been stated in the complaint that initially the complainant had requested the respondent to make payment of the cheque amount but he did not make any payment. Thereafter, the said notice dated 27.03.2017 was issued. But, as the respondent did not make payment of the cheque amount within the stipulated time or at all the complainant was persuaded to institute the complaint as according to him the respondent has clearly committed an offence punishable under Section 138 of the Negotiable Instrument Act. The cognizance was accordingly taken and the process was issued. The respondent denied the statement of accusation by stating that the said cheque was not issued for discharging any legally enforceable debt or liability of payment. The complainant adduced three witnesses including him and introduced 11(eleven) documents including the demand notice [Exbt.9] and the original cheque bearing No.687209[Exbt.1]. The respondent has also adduced two witnesses including him and introduced 19(nineteen) documentary evidence [Exbt.A-Exbt.S] including the reply to the demand notice [Exbt.G]. 04. The trial judge af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan amount to the extent of ₹ 2,50,000/- but later on, in order to harass the respondent, he has instituted the said case falsely. Thus, the story of the complainant was completely disbelieved by the trial judge and hence, the respondent was acquitted from accusation of committing offence punishable under Section 138 of the NI Act. The said judgment has been challenged in this appeal. 07. Mr. B. N. Majumder, learned senior counsel, assisted by Mr. R. Saha, learned counsel has submitted that the foundation of that observation, based on which the impugned judgment of acquittal has been passed, is unsustainable inasmuch as the complainant has established that the cheque which has been dishonoured was issued by the respondent. Therefore, under Section 139 of the Cr.P.C., the presumption has to be drawn that the respondent had liability of discharging legally enforceable debt and in order to discharge the said liability, he had issued the cheque which has been dishonoured for insufficiency of fund. According to Mr. Majumdr, learned senior counsel, the finding of the trial judge in respect of the two cheques dated 14.02.2015 and 14.03.2015 is perverse and those two cheques [Exbt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onus of proof by showing the non- existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. [Emphasis added] 09. There is no equivocality. It is not required that the accused shall always advance the evidence to disprove the existence of consideration. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which the complainant relies. For the purpose of rebutting the initial evidential burden, the defendant can rely on the direct evidence or the circumstantial evidence or a presumption of law of fact once such convincing rebuttal evidence is adduced and accepted by the Court. Having regard to all the circumstances of the case and preponderance of probabilities, the evidential burden shifts back to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The Appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act. [Emphasis added] 14. According to Mr. Datta, learned counsel, in this case also the cheque which the complainant had deposited for encashment was for purpose of security and hence, he cannot be held to have issued in discharge of any legally enforceable debt. It is the clear case of the respondent that nothing is due and the cheque was issued by way of security. Mr. Datta, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the company. In 2015-16 A.D, the said company being in need of money, all the share-holders were required to pay a certain amount of money. But since I had no capacity to pay the money, your client Shri Raju Saha, by being the share-holder of the company, agreed to pay the money. But the responsibility of making him the share-holder of the said company would have to be borne by me. Because of good relationship, I became agree. Then your client Shri Raju Saha demanded a blank cheque as security. On 26.04.2015 A.D, I gave a signed blank cheque bearing No.610769(SBI) to your client Shri Raju Saha, Excepy my signature, the spaces meant for the name of the bearer, date, amount of money were blank. After taking responsibility of making your client a share- holder of the company in place of mine I gave the blank cheque to your client as a security. 15. It has also been categorically stated in the said reply that the respondent had given a blank cheque to the complainant as security, see para-5 of the reply dated 12.05.2017 [Exbt.G]. According to Mr. Datta, learned counsel, the complainant has in order to cause harm to the respondent deposited the security cheque for payment. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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