TMI Blog2022 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the accused to state that the complainant had stolen away her cheques when she came come to her house in order to see her sick husband, there are materials to probablise her defence that the impugned cheque was not supported by consideration and it was not given for discharging a legally enforceable liability or debt - A person, who already aggrieved due to non payment of a money-due by a debtor, would not dare to give an another enhanced loan to the same debtor and that too without any security. This is especially clear from the fact established by the defence through Ex.D2/receipt that after the sale transaction between the complainant and the accused, the accused did not owe any money to her . The appellate Court has evaluated the facts and circumstances and other materials available in this case and gave due weight to the preponderance of probabilities established by the defence. Since the case of the defence is more probable and strong enough to improbabilise the case of the complainant, it has chosen to reverse the judgement of the Trial Court - Appeal dismissed. - Criminal Appeal No.781 of 2017 - - - Dated:- 16-12-2021 - Honourable Ms.Justice R.N.Manjula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional Sessions Court, Erode in Crl.A.No.179 of 2016 and the same was allowed and the judgement of the trial Court was set aside. Aggrieved over that, the complainant has preferred this Criminal Appeal. 4. Heard the submissions of Mr. Arun Anbumani, learned Counsel for the Appellant/complainant and Mr. N.Manokaran, learned Counsel for the respondent/accused. 5 . The learned counsel for the appellant submitted that the learned Appellate Judge has himself held that the preponderance of probabilities is in favour of the respondent/accused and that the alleged transaction between the appellant/complainant and the respondent/accused is false and that the cheque was not issued for legally enforceable debt. It is further submittted that if the executants admits the execution of the cheque, the holder of the cheque is entitled to a presumption that the cheque was issued for a legally enforceable debt. But the learned Appellate Judge had wrongly dislodged the said presumption and acquitted the accused by accepting the improbable defence taken up by the respondent/accused. In support of his arguments, the learned counsel for the Appellant/complainant relied on the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble on record is fair and proper? 8. The complainant and the accused are already known to each other as family friends. The respondent/ accused is working as an appraiser in the City Union Bank, Thiruchencode. The husband of the accused is doing jewellery business. The signature in the cheque (Ex.P.1) was not disputed by the accused. However she has stated that since the cheque was stolen by the petitioner/complainant she advised her banker to stop payment. It is claimed by the petitioner/complainant that the presumption under Sec.139 of the Negotiable Instrument Act cannot be denied to the complainant if the execution of the cheque was not disputed and no rebuttal evidence is produced to shatter the said presumption. 9. Both the presumption contemplated under Sec.118 and 139 of the Negotiable Instruments Act are mandatory presumptions. It is relevant to extract the provisions: Section 118 in The Negotiable Instruments Act, 1881 118 Presumptions as to negotiable instruments. -Until the contrary is proved, the following presumptions shall be made: - (a) of consideration -that every negotiable instrument was made or drawn for consideration, and that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,00,000/- is said to have taken place on 10.11.2013, which is subsequent to the execution of the above receipt dated 12.06.2013. It is pertinent to note from the cross examination of DW.1, that the complainant had received the entire true sale consideration of ₹ 42,50,000/- from the accused. However the sale price is shown in the receipt as ₹ 22,50,000/-. From the pattern of documents executed between the parties during the above sale transactions would show that the respondent had purchased the properties as a part of his real estate business. 12. During the pendency of these proceedings before the trial Court and after examination of PW.1, the respondent /accused has sent a notice to the complainant, which is marked as Ex.D1. It is alleged in the said notice that the property, which was sold in favour of the respondent had already been encumbered by the complainant's husband and he had executed the power document in favour of one Udhayakumar on 23.03.2008 and the said Udhayakumar had entered into a sale agreement with one Murugesan. When PW.1 was confronted about the facts in her evidence, she had stated that she had no knowledge about the above transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantiate her financial potential for lending the amount involved in the cheque to the accused. But the petitioner/complainant has failed to undertake such an exercise and rebuild the presumption once again in her favour. 17. In this context of reverse burden on the part of the accused, it is relevant to refer the judgement of the Supreme Court reported 2019(5) SCC 418 [Basalingappa Vs.Mudibasappa]. The relevant portion is under: 20. A Three-Judge Bench of this Court in Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 had occasion to elaborately consider provisions of Sections 138 and 139. In the above case, trial court had acquitted the accused in a case relating to dishonour of cheque under Section 138. The High Court had reversed the judgment of the trial court convicting the accused. In the above case, the accused had admitted signatures on the cheque. This Court held that where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertained to a legally enforceable debt or liability, however, this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. In Paragraph No.13, foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 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 existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the examination by the complainant. The admissions given by PW.1 during her cross-examination, the materials produced as defence side documents coupled with the evidence of DW.3 would show that the accused did not take a casual defence. 20. Though, it might be an exaggeration on the part of the accused to state that the complainant had stolen away her cheques when she came come to her house in order to see her sick husband, there are materials to probablise her defence that the impugned cheque was not supported by consideration and it was not given for discharging a legally enforceable liability or debt. A person, who already aggrieved due to non payment of a money-due by a debtor, would not dare to give an another enhanced loan to the same debtor and that too without any security. This is especially clear from the fact established by the defence through Ex.D2/receipt that after the sale transaction between the complainant and the accused, the accused did not owe any money to her . 21. The appellate Court has evaluated the facts and circumstances and other materials available in this case and gave due weight to the preponderance of probabilities established by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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