TMI Blog2021 (11) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... s not in the handwriting of the complainant. As far as the finding recorded by the Appellate Court that complainant is an unregistered moneylender is concerned, the same is totally erroneous. None of the witnesses examined by the accused has deposed that they obtained loan on interest or complainant advanced money on interest. On the contrary, DW- 1 is silent about moneylending business by the complainant - it appears that as conviction is there under NI Act, the said amount advanced by the complainant is held as legally enforceable debt. If the complainant is not earning any additional amount toward interest over the amount advanced to these witnesses, this finding of learned Appellate Court that he is unregistered moneylender is totally erroneous. The presumption under section 139 is a rebuttable presumption and the onus is on the accused who raised the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. Where the learned Appellate court disbelieved the defence, no question of rebuttal by the accused would arise. So far as showing the said amount in income tax returns is concerned, as the amount is duly reflecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts Act. 3. Process under section138 of N.I. Act was issued to the respondent No.1. As the respondent No.1 pleaded not guilty, was ordered to face trial. The appellant to prove his case examined himself as PW1 who placed on record the cheque dated 20/06/2006, cheque return memo, forwarding letter and legal notice and on the strength of incriminating evidence found in his deposition, 313 statement was explained to the respondent No.1, who denied the allegations. 4. It was the case of the respondent No.1 that the appellant, had obtained blank cheque and blank receipt from him and promised to pay ₹ 40,00,000/-. That the appellant also took ₹ 4,00,000/- from him as 10% of the amount as margin and promised to pay the said ₹ 40 lakhs within 15 to 20 days but did not advance the money and on the contrary misused and misutilized the cheque for filing the complaint. Thus, he alleged that the appellant cheated him. In defence, the respondent No.1 examined DW1 Shri Gitesh Naik, DW2 Shri Bhavani Parkar, DW3 Shri Raghuraj Ghate, DW4 Shri Narayan Kamat who produced Statement of Account and account opening form, specimen signature card, application for charge, cash depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent no. 1 to deny a legal right of the appellant. In such circumstances, the Appellate Court ought not to have interfered with the judgment and order of the learned JMFC. The finding of the Appellate Court that appellant is a moneylender is neither sufficient in terms of law nor do the finding of the Appellate Court refer to the ingredients for making a person a moneylender in terms of law. Evidence of witnesses examined by the respondent no. 1 is not at all of any assistance to the respondent No.1 and the reliance placed by the Appellate Court on the testimonies of these witnesses suffer from perversity. None of these witnesses stated that the amount, which was advanced by the appellant, is on interest basis. 9. As against this, learned Advocate Shri Gaurish Agni submitted that the order passed by the Appellate Court is perfectly justifiable in the facts and circumstances. The appellant failed to establish that the cheque was issued by the accused against the legally enforceable debt. The finding that the complainant is an unregistered moneylender is also perfectly legal and justified. In view of the fact that the writing in the body of the cheque and the handwriting on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused and has not even given the finance that was required, no prudent person would have waited without taking any action. It is admitted fact that he neither responded to the notice nor filed any complaint or taken any action against the complainant herein. The accused failed to substantiate wherefrom he brought the amount of ₹ 4 lakhs. As against this, the complainant through his passbook substantiated withdrawal of amount from the bank for such payment. The learned Trial Court also rightly appreciated the fact that accused admitted signature on the disputed cheque as well as on the receipt. As per opinion of handwriting expert, the contents written in the body of cheque or receipt is not in the handwriting of the complainant. Even if it would be in the handwriting of complainant, it is settled position of law that the admitted signature on cheque cast a liability of payment of cheque amount. It also needs to be noted that accused has not examined his father who allegedly accompanied him to the complainant when he handed over the alleged amount of ₹ 4 lakh. As such, the defence of the accused is an afterthought and cannot be believed from any angle. 12. As far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the complainant and the accused has admittedly signed the cheque. The cheque has to be considered as issued towards legally enforceable debt given by the accused to the complainant. Even evidence of accused is not sufficient to meet the standards of preponderance of probabilities. Even if the execution of cheque is admitted, section 139 of the Act mandates the presumption that the cheque was for the discharge of any debt or other liability. The presumption under section 139 is a rebuttable presumption and the onus is on the accused who raised the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. Where the learned Appellate court disbelieved the defence, no question of rebuttal by the accused would arise. So far as showing the said amount in income tax returns is concerned, as the amount is duly reflecting in bank account, the same will be taken care of by the Income Tax Department and consequences/procedure will follow as per provisions of law. For that reason accused cannot be absolved, specifically when both the learned lower courts disbelieved his defence. 16. Reliance placed by the learned Advocate Shri Agn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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