TMI Blog2021 (11) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... s favour and non-probabilities against the complainant. The evidence on record would clearly show that the fact is not as presumed. Therefore, the presumption under Sections 118(a) and 138 of the NI Act is over. Thus, it can be safely concluded that having regard to the facts and circumstances of the case and preponderance of probabilities, the rebuttal evidence adduced by the accused is acceptable. In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that complainant failed to prove that Ext. P1 cheque was issued towards the legally enforceable debt and that the case put forward by the accused is more probable and believable and hence, no offence u/s. 138 of the NI Act was made out. Accordingly, the accused was acquitted u/s. 255(1) of the Cr.P.C. as per the impugned judgment. Challenging the said judgment, the complainant preferred this appeal. 6. Even though notice was served to the first respondent, there is no appearance. I have heard Sri. K. Ramakumar, the learned Senior Counsel for the appellant/complainant. 7. The learned Senior Counsel for the appellant submitted that the complainant has succeeded in proving the execution of Ext. P1 cheque by examining PW1 and, hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 9. As stated already, the case set up by the complainant is that he and the accused were friends and out of the said relationship, the accused borrowed a sum of ₹ 50,000/- from him on 10/3/2003 agreeing to repay it within one week and issued Ext. P1 cheque towards the repayment of the said amount. The definite case set up by the accused from the very inception is that the cheque in question was issued to one Mr. Abdul Salam as a security towards some other transaction. The accused contended that he was the Secretary of Sri Ravi Shankar Vidya Mandir at Payyoly and one Mr. Kalloli Rajan was its Joint Secretary. Mr. Kalloli Rajan purchased a vehicle from one Mr. Abdul Salam for the use of the school. Since the vehicle was under hyp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wayanad the accused resides. PW1 also deposed that he cannot say for what purpose the accused borrowed money from him. Ext. D1 is an agreement executed by Sri. Abdul Salam in favour of Sri. Kalloli Rajan. The vehicle transaction between them as well as the issuance of cheque by the accused as a security to the said transaction has been clearly recited in the said agreement. The number of Ext. P1 cheque has been clearly mentioned in the said agreement. It is pertinent to note that Ext.D1 agreement is dated 6/2/2003 whereas Ext. P1 cheque is dated 18/3/2003. DW1 has also given evidence in tune with his defence version. Even though he has been cross-examined in length, nothing has been brought out from his testimony to discredit his evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cited by the learned Senior Counsel would not apply to the facts of this case. 12. It is settled that there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden. The accused need to substantiate his case based on preponderance of probabilities. The accused in this case was successful in discharging the burden by cross-examining PW1, by examining DW1 and producing Exts.D1 to D4 and also by proving probabilities in his favour and non-probabilities against the complainant. The evidence on record would clearly show that the fact is not as presumed. Therefore, the presumption under Sections 118(a) and 138 of the NI Act is over. Thus, it can be safely concluded that having regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
