TMI Blog2022 (6) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... ion itself even before filing the complaint, the complainant is bound to explain in his complaint regarding the source of income. Failure to explain his source of income is fatal to the complaint. The person capacity to advance loan of Rs.9 lakhs is a very fundamental fact when the capacity is questioned. To add, the complainant admits that he did not receive any other document for advancing loan of Rs.9 lakhs, except the postdated cheque given to him. In any transaction, when cheque is issued, it is presumed to be issued to discharge the existing debt. Offence under Section 138 of Negotiable Instruments Act will get attracted, if the said debt happens to be legally enforceable. Therefore, the existing debt pre-suppose a presumption. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2017 - - - Dated:- 20-6-2022 - THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN For the Petitioner : Mr. K. M. Subramaniam For the Respondent : No appearance ORDER The revision petitioner is the accused in S.T.C.No.152 of 2016 on the file of the Judicial Magistrate, (Fast Track Court No.1), Erode in a private complaint initiated under Section 138 of Negotiable Instruments Act. The cheque dated 16.11.2015 drawn by the petitioner for a sum of Rs.9 lakhs in favour of one K.Karthikeyan/respondent is the subject matter of the complaint. 2. According to the complainant, the petitioner borrowed a sum of Rs.9 lakhs and to discharge the debt, he gave the subject cheque. However, on presentation of the same, it was returned wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject cheque enures the presumption under Section 139 of Negotiable Instruments Act in favour of the complainant. The appellate Court held that the accused failed to rebut the presumption under Section 139 of the Negotiable Instruments Act. The capacity to advance loan of Rs.9 lakhs need not be proved by the complainant and therefore, dismissal of the complaint by the trial Court is erroneous. 5. The Appellate Court for the above said reasons, reversed the order of the acquittal and convicted the accused. One month Simple Imprisonment and compensation of Rs.9,000/-, in default, to undergo Simple Imprisonment was imposed. 6. The learned counsel appearing for the revision petitioner submitted that the appellate Court erred in reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise the principles enumerated by this Court in following manner: 25.1.Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2.The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3.To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan of Rs.9 lakhs to the petitioner on his promise that he will repay the money within one month. The Cheque drawn at Axis Bank, Tiruppur Branch dated 16.11.2015 for Rs.9 lakhs was given to him as security. The petitioner promised that if the cheque is presented on the date it bears, he can realise the money. However, on presentation, the cheque bounced with an endorsement insufficient fund . In the cross examination, the complainant admits that he did not receive any other document as proof for advancing loan of Rs.9 lakhs, except the subject cheque. The cash was given in 500 and 1000 rupees denomination at his house. It was the savings kept in the house and not drawn from the bank. Except he and the petitioner, none were present in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to prove by preponderance of probabilities that there was no existing debt on the date on which the cheque bears, then the complainant under Section 138 of the Negotiable Instruments Act cannot have the advantage of the statutory presumption under Section 139 of the Negotiable Instruments Act. 12. As pointed out by the Hon'ble Supreme Court in Basalingappa v. Mudiasappa reported in (2019) 5 SCC 418 (cited supra), when the capacity to advance loan or transaction for which the alleged cheque given is denied, the complainant cannot take advantage of Section 139 of the Negotiable Instruments Act without discharging his burden of proving the fundamental fact regarding transaction, which has created an existing debt (or) his capacity t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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