TMI Blog2021 (12) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... accused need to substantiate his case based on preponderance of probabilities. The accused in this case is successful in discharging the burden by cross examining PW1 and examining DW1 to DW3 and also producing Exts. D1 and D2 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d offence under Section 138 of the NI Act. 4. The complainant himself gave evidence as PW1. A witness was examined as PW2. Exts. P1 to P9 were marked on the side of the complainant. The accused himself gave evidence as DW3. Two independent witnesses were examined as DW1 and DW2 and Exts. D1 and D2 were marked on his side. 5. The Court below on appreciation of evidence found that complainant failed to prove that the accused borrowed a sum of ₹ 1,00,000/- and towards the discharge of the said debt Ext. P1 cheque was issued to him. 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. I have heard Sri. Shaji Thankap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability. Whether the presumption is rebutted or not, would depend upon the facts and circumstances of each case. of course, the execution and issuance of cheque have to be proved by the complainant to draw presumption under Section 139 of the Act. 10. The definite case of the defence is that the complainant is a money lender and he borrowed a total sum of ₹ 10,000/- from the accused on three different occasions and a singed blank cheque was issued as security towards the said transaction and it was misused and a false complaint was filed. In order to prove the said defence version, the accused himself gave evidence as DW3 and two independent witnesses were examined as DW1 and DW2. He has also produced Exts. D1 and D2. The accused d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments in question for opinion of the expert. By that time, C.M.P. No. 691/2005 was already closed. That apart, even after the order of this Court, the complainant did not produce his admitted hand writing at the court. Therefore, the complainant now cannot contend that he should be given an opportunity to send Exts. D1 and D2 to scientific expert. 12. The court below on appreciation of evidence found that the defence version appears to be probable. On reappreciation of evidence, I find no reason to take a different view than that of the court below. The evidence of independent witnesses, DW1 and DW2, would substantiate the defence case set up by the accused. Even in the absence of the expert opinion, the accused had succeeded in proving ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
