TMI Blog2022 (6) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... iled this case and the same has been denied. No doubt, in the income tax declaration, P.W. 1 has not declared for having paid the money. But in the cross-examination, P.W. 1 admits that he has not produced any documents to show that he is paying income tax. But he admits that he is an income tax assessee. But non-filing of the document for having paid income tax will not take away the case of the complainant and the petitioner has to explain how the subject matter of cheque had gone to the hands of the said Devraj Urs and what made him to give the said cheque - It is only stated that Devraj Urs had taken away several cheques belonging to him and no doubt, the wife of the petitioner had given the complaint in terms of Ex. D.2, but she has not been examined before the Trial Court and both the Courts have taken note of that if she had been examined before the Trial Court, an opportunity was given to the complainant to testify the document of Ex. D.2. The other contention of the petitioner is that P.W. 1 has admitted the relationship with Devraj Urs and mere admission that Devraj Urs is the relative of the complainant does not mean that Devraj Urs had given the cheque in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62/2012 on the file of the I Additional Sessions Judge at Mysuru and acquit the petitioner. 2. The factual matrix of the case of the complainant/respondent before the Trial Court is that this petitioner/accused had approached the complainant in the month of June, July and August 2008 in order to fulfill his family commitments and to clear hand loans and for such other legal necessities. The complainant has paid Rs. 8,00,000/- on different dates. The accused agreed to repay the said amount with 1% interest per month. When the complainant demanded to pay the money, the accused issued the subject matter of the cheque and the same was dishonoured and notice was issued and no reply was given and hence the complaint was filed and the Trial Court took the cognizance and thereafter the complainant examined himself as P.W. 1 and got marked the documents at Exs. P.1 to 8(a). On the other hand, the accused also examined himself as D.W. 1 and examined another witness as D.W. 2 and got marked the documents at Exs. D.1 to 3. The Trial Court after considering both oral and documentary evidence placed on record, convicted the petitioner and directed to pay an amount of Rs. 8,25,000/- as fine. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of M.S. NARAYANA MENON ALIAS MANI v. STATE OF KERALA AND ANOTHER reported in (2006) 6 SCC 39, wherein regarding onus of proof on accused, held, that it is not as heavy as that of the prosecution. Such onus compared with that of a defendant in civil proceedings. 7. The learned counsel also relied upon the judgment of the Apex Court in the case of BASALINGAPPA v. MUDIBASAPPA reported in (2019) 5 SCC 418, wherein it is held that the prosecution must establish its case beyond reasonable doubt, accused to prove a defence must only meet standard of preponderance of probabilities. The learned counsel also brought to the notice of this Court paragraph No. 12 regarding presumption and the same is rebuttable presumption. The learned counsel also brought to the notice of this Court paragraph No. 19 of the judgment. 8. The learned counsel also relied upon the judgment of this Court in the case of S. TIMMAPPA v. L.S. PRAKASH reported in 2015 (5) KCCR 3397, wherein discussed with regard to the presumption has been rebutted. The learned counsel also relied upon the judgment of this Court in the case of SMT. THREJA v. SMT. JAYALAXMI reported in 2016 (5) KCCR 1341, wherein discussed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e., during the months of June, July and August 2008 by putting forth his financial constraints in order to fulfill his family commitments, for clearing some of his hand loans and for such other legal necessities and agreed to repay the same within 3-4 months with 1% interest per month. No doubt, specific date is not mentioned with regard to the advancing of the amount. In the cross-examination of P.W. 1, he categorically stated that he made the payment of Rs. 3,00,000/- in the month of June, Rs. 2,00,000/- in the month of July and Rs. 3,00,000/- in the month of August. In the cross-examination, it is elicited that there were 10 to 12 transactions between them. With regard to obtaining of the document is concerned, he categorically says that prior to this transaction also, he had paid 2-3 lakhs and by that time also he has not collected any documents. It is also elicited that he gave the money in his house and when the question was put to him whether there was any difficulty to get any document from him, the witness categorically says that there was no such necessity. It is suggested that the accused was getting salary and there was no need to get the loan and the witness categorica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given. In the cross-examination of P.W. 1, specific defence was taken that one Devraj Urs, who is the relative of P.W. 1 had given the cheque in favour of the complainant and the same has been misused since Devraj Urs handed over the said cheque and got filed this case and the same has been denied. But in the chief evidence also, the petitioner has stated that Devraj Urs had taken the cheques belonging to him. Why he took the cheque is not stated and how the cheque had gone to the hands of Devraj Urs is not stated by the petitioner. In paragraph No. 4 he says that Devraj Urs had taken away several cheques belonging to him and not stated anything about he lost the cheque. But in the cross-examination he claims that the cheques have been lost and contra question put in the cross-examination and admittedly he has not given any complaint and also not produced any documents for having given the complaint, but relies upon the documents Exs. D.1 to 3. Ex. D.1 is the provident fund statement and Ex. D.2 is the endorsement issued by the police for having given the complaint by the wife of the accused on 07.07.2007 and Ex. D.3 is the affidavit of the wife and what made to sworn to an affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the petitioner. No doubt, the principles laid down in the judgments referred supra by the learned counsel for the petitioner regarding the presumption as well as transaction is concerned, the accused has to probabalize his case. But in the case on hand, though the petitioner examined himself as D.W. 1 and got marked the documents at Exs. D.1 to 3, those documents will not help the petitioner. Apart from that, the defence has not been probabalised and inconsistent defence was taken, in one breath says that said Devraj Urs had taken the cheque, but this petitioner has not given any complaint and relies upon the endorsement given by the police with regard to the complaint given by his wife. D.W. 2 categorically admitted that the petitioner has not given any complaint and there was no any difficulty for him to give the complaint when the cheque belonging to the petitioner was lost. Hence, I do not find any force in the contention of the learned counsel for the petitioner to accept the argument that the petitioner has probabalised his case. 17. Regarding loss of cheque and also rebuttal of the presumption is concerned, the Apex Court in the judgment in the case UTTAM RAM v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to defence which have been taken. The Trial Court in paragraph Nos. 12 to 15 in detail discussed regarding the evidence of witnesses and particularly cross-examination was extracted and taken note of contradictions and also taken note of that the petitioner had gone to the extent of denying his signature on the cheque, but he admitted that he has received the notice sent by the complainant, but not given any reply. D.W. 2 also categorically admitted the cheques were lost from the business concern being run by the wife of the accused and also elicited that accused did not choose to examine his wife. 22. The Appellate Court in paragraph No. 15 taken note of the defence taken by the petitioner and comes to the conclusion that there is no explanation from the accused for having lodged the complaint to the police and informing the bank about the loss of cheque though he claims that he gave complaint and information to the bank. Taking note of Exs. D.2 and 3, discussed in paragraph No. 16 and also taken note of the evidence of D.W. 2 in paragraph No. 18 and in paragraph No. 23 taken note of the admission given by the P.W. 1 regarding income tax assessee is concerned. Merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X
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