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TMI Blog2022 (2) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... hs were dishonoured Rs. and that, therefore, the respondent no. 1 was liable to be punished for the offence under Section 138 of the aforesaid Act. It was stated in the complaint that the since the complainant was a friend of the respondent no. 1, he had faith and trust and as such, he advanced certain amounts on various dates, totaling Rs.6 lakhs to the respondent no. 1. In order to repay the said amounts, which were said to have been advanced in the year 2009, the respondent no. 1 allegedly gave three cheques for amounts of Rs.3,50,000/-, Rs.50,000/- and Rs.2,00,000/- in favour of the appellant, but, on deposit of the said cheques, they were dishonoured. Despite notice issued to the respondent no. 1, he failed to make good the said amounts and therefore, the appellant was constrained to file the said complaint. It was stated that the respondent no. 1 did not give any reply to the notice issued by the appellant. 3. Upon summons having being issued to the respondent no. 1, he appeared before the Magistrate. The appellant filed his affidavit in evidence and relied upon various documents, including the subject cheques, the memorandum issued by the Bank stating that the cheques were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasized on the fact that the signature on the cheques and the fact that they were handed over to the appellant were not denied by the respondent no. 1 and therefore, the presumption under Sections 118 and 139 of the said Act operated in full force, which the Sessions Court failed to appreciate. It was submitted that the contents of the cheques could be said to have been entered later on and that by itself would be of no assistance to the respondent no.1. Reliance was placed on the judgments of the Hon'ble Supreme Court in T. Vasanthakumar Vs. Vijayakumari, (2015) 8 SCC 378, Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197 and the judgment of this Court in Krishna P. Morajkar Vs. Joe Ferrao & Others, 2013 ALL MR (Cri) 4129. 8. On the other hand, Mr. Arjun Naik, learned Counsel appearing for the respondent no. 1 submitted that no interference was warranted in the well reasoned judgment and order, passed by the Sessions Court. It was submitted that the material on record was appreciated in the correct perspective to hold that the presumption operating against the respondent no. 1 stood rebutted. The necessary foundational facts for operation of the presumption in favour of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te why the presumption ought not to operate against him. There cannot be any doubt about the proposition that the presumption can be rebutted by the accused. It can be rebutted by the accused by leading defence evidence or by discrediting the claims made by the complainant by effective cross examination or confronting the complainant with certain documents. 13. In the present case, the version of the appellant (original complainant) was put to test by cross examination on behalf of the respondent no. 1 and the appellant was also confronted with documents pertaining to an earlier similar complaint filed on behalf of the appellant for dishonour of cheque for an amount of Rs.2 lakhs. 14. In the cross examination, specific questions were put to the appellant as to the details regarding the amounts that were allegedly advanced to the respondent no. 1. The appellant could not give any such details. Although, the appellant is justified in contending that he could not have been expected to remember the exact date, time and denomination of currency notes of the amounts advanced to the respondent no. 1, it was expected that the appellant could have given some details about the time period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In this backdrop, it needs to be examined whether, the appellant was justified in claiming that the order of conviction and sentence imposed by the Magistrate could not have been reversed for the reason that the presumption under Sections 118 and 139 of Cr.P.C. operated in his favour, due to the reason that the signatures on the cheques were not denied by the respondent no. 1. Even if it is to be accepted that the presumption operated in his favour, in the present case, this Court is of the opinion that the presumption stood rebutted in view of the admissions given by the appellant under the strain of cross examination. It is a settled position of law that the accused is required to rebut the presumption on the touchstone of preponderance of probabilities and not on the test of proving the same beyond reasonable doubt. Considering the said position of law, it is found that the respondent no. 1 successfully rebutted the presumption. This is supported by the law laid down by the Supreme Court in M.S. Narayana Menon alias Mani Vs. State of Kerala & Another, (2006) 6 SCC 39, which is relied upon by this Court in the case of Krishna P. Morajkar (supra). 18. Apart from this, another a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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