TMI Blog2018 (3) TMI 1968X X X X Extracts X X X X X X X X Extracts X X X X ..... rebut that positive proof? - HELD THAT:- So far as the question of proving legally enforceable debt by the complainant is concerned, the law has been laid down by the three Judges Bench of the Hon'ble Apex Court in case of RANGAPPA VERSUS SRI MOHAN [ 2010 (5) TMI 391 - SUPREME COURT] wherein it is held that presumption mandated by Section 139 of the Act include the existence of legally enforceable debt or liability and this being a rebuttal presumption, of course, such presumption can be rebutted by the accused by raising the defence and on contesting liability. It of course, is in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, what can be undoubtedly said is that there is an initial presumption that favours the complainant and Section 139 is an example of a reverse onus clause, which has been included in furtherance of the legitimate objection of improving the credibility of the negotiable instruments. To that extent the Apex Court held that the observations made in case of Krishna Janardhan Bhatt Vs. Dattatraya G. Hedge [ 2008 (1) TMI 82 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided under the provisions of the NI Act, before he prosecutes a person for dishonor of the cheque, a notice has been issued within a period of 30 days from the date of receipt of the information from the bank with regard to the return of the cheque, and thus, such requirement has been duly fulfilled by the present applicant - It is also not in dispute that the cheque had returned, as per the Bank memo on account of insufficient balance in the account of the drawer. The cheque bearing No.574147 for the sum of Rs.36 lakh had returned due to insufficient balance. This Court holds firmly that the trial Court committed no error in believing that the complainant succeeded in discharging the burden that there exists a legally enforceable debt or liability, and thereafter, the legal presumption was required to be dislodged or rebutted by the accused-respondent, which he miserably failed to do with preponderance of probabilities, and therefore, findings and the conclusions arrived at by the Sessions Court deserve to be quashed and set aside - The respondent No.2 was required to discharge the burden under Section 118 and 139 of the N.I. Act that the cheque he issued of Rs.36 lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the prosecution as revealed in the complaint that the respondent had taken the complainant into confidence by impressing upon him that he had a big name in the office of L.I.C. He also had a side businesses of real estate and land; a process house in the name of S.B. Fabric. Under the pretext that he needed to initiate a business in partnership, he had shown the need of Rs.36 lakh. While promising partnership to the appellant in the new business with equal percentage, he procured from the appellant a sum of Rs.36 lakh. A promissory note was given in lieu of the amount parted by the complainant. 4. It is the grievance of the appellant that after obtaining this huge sum, the respondent had left his native and despite the best endeavors on the part of the appellant, his whereabouts were not found. When eventually he returned, on a persistent demand of the complainant, he had ensured to give the complainant a parcel of land situated at Ghuma, Tal. City and District Ahmedabad, bearing Survey Nos.506 and 507 with Block No.633 admeasuring 238 Gunntha and hector 11938 H.A.G. He had also ensured to clear the bank dues for clearing the charge over the said land which was hypothecate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 on 28.4.2011. It was thereafter transferred to the Court conducting matters under the N.I. Act specially, being Court No.28, and the criminal case number remained the same i.e Criminal Case No.521 of 2017. 10. After allowing the parties to adduce oral evidence as well as documentary evidence, the further statement of the accused on the evidence adduced came to be recorded where the defense raised in his further statement under section 313 of the Code, is that of denial of any legally enforceable debt. Considering incriminating oral as well as documentary evidence, the respondent was held guilty under section 138 of the N.I. Act and he had been convicted by the trial Court for a period of two years with simple imprisonment and fine of Rs.5000/and in default, four months of further simple imprisonment. :: Appeal before the Court of Sessions :: 11. Aggrieved respondent No.2 approached the Appellate forum against the judgment and order of conviction, by way of Criminal Appeal No.92 of 2015 read with Criminal Appeal No.486 of 2015 and the Court after elaborate discussion of the evidence quashed and set aside the judgment and order of learned Additional Chief Metropol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan of huge amount i.e. Rs.36 lakh to the present respondent. 15. He has also sought to rely upon the following judgments in his support : 1. T. Vasanthakumar Versus Vijaykumari reported in (2015) 8 SCC 378; 2. Sabitha Ramamurthy Versus R.B.S. Channabasavaradhya reported in Laws (SC) 2006-9-26 decided on September 13, 2006; 3. Amarnath Baijnath Gupta Versus Mohini Organics Pvt. Ltd. reported in Laws (BOM) 2008-12-79 decided on December 11, 2008; 4. Arun Tikekar Versus Sanatan Santha reported in LAWS (BOM)2009-640 decided on June 25, 2009; 5. Patel Jayantibhai Mafatlal Versus State of Gujarat and other reported in Special Criminal Application (Quashing) No.3894 of 2013 decided on December 23, 2013; 6. Shri Ramesh J. Chauhan Versus Shri Merwan K. Irani and others reported in Criminal Writ Petition No.1046 of 2002 decided on June 9, 2016. 16. Learned APP Mr. H.K. Patel appearing for the State has supported the case of the complainant to urge this Court that the appreciation of evidence shall have to be regarded thoroughly. It is the case were the Trial Court had convicted the respondent whereas the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, what can be undoubtedly said is that there is an initial presumption that favours the complainant and Section 139 is an example of a reverse onus clause, which has been included in furtherance of the legitimate objection of improving the credibility of the negotiable instruments. To that extent the Apex Court held that the observations made in case of Krishna Janardhan Bhatt Vs. Dattatraya G. Hedge, AIR 2008 SC 1325 would not be correct. The relevant observations read as under: 7. However, on appeal against acquittal, the High Court reversed the findings and convicted the appellant-accused. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 886322, dated 822001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. ...' Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction. 8. In the course of the proceedings before this Court, the contentions related to the proper interpretation of Sections 118(a), 138 and 139 of the Act. Before addressing them, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 138 for the discharge, in whole or in part, of any debt, or other liability. 9. Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 13 9 of the Act. With respect to the facts of the present case, it must be clarified that contrary to the trial court's finding, Section 138 of the Act can indeed be attracted when a cheque is dishonoured on account of `stop payment' instructions sent by the accused to his bank in respect of a postdated cheque, irrespective of insufficiency of funds in the account. This position was clarified by this Court in Goa Plast (Pvt.) Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC 232, wherein it was held: Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act has three ingredients viz.: (i) that there is a legally enforceable debt (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. 30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. 31. The courts below, as noticed herein before, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheque that the same has been issued for discharge of any debt or other liability' [See Para. 30 in Krishna Janardhan Bhat (supra)] are in conflict with the statutory provisions as well as an established line of precedents of this Court. It will thus be necessary to examine some of the extracts cited by the respondentclaimant. For instance, in Hiten P. Dalal v. Bratindranath Banerjee , (2001) 6 SCC 16, it was held (Ruma Pal, J. at Paras. 2223): 22. Because both Sections 138 and 139 require that the Court `shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbably or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. (emphasis supplied) Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 13 9 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the constructionexpenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant. (emphasis supplied) 21. Apt would be also to refer to the Chapter 13 of the NI Act under the heading 'Special Rules of Evidence which provides for the Presumptions available under Section 118 of the NI Act, until the contrary is proved, certain presumptions are made available under this Section 118 of the NI Act which reads thus: 118. Presumptions as to negotiable instruments. (a) of consideration; (b) as to date; (c) as to time of acceptance; (d) as to time of transfer; (e) as to order of endorsements; (f) as to stamp; (g) that holder is a holder in due course; 22. This provision subject to the rule of evidence is applicable to the matters under the NI Act. The presumption made available is one of law and the Court is obliged to presume that the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved legally enforceable debt or liability. The Apex Court held that the High Court was misplaced in not considering the presumption in favour of the complainant as provided under Section139 of the Act, the burden had shifted on the accused, which she failed to discharge. The signature of the cheque had been accepted by the accused-respondent. The Apex Court held that the presumption under Section 139 of the NI Act would operate and it is irrelevant that the complainant had withdrawn the amount of Rs.5 lakh two days prior to the giving of the cheque, which he failed to bring on record, such withdrawal of money from the bank. The story of the accused was that the cheque was given to the complainant long back in the year 1999 and the loan was repaid. However, the complainant did not return the cheque and the same was misused by him to implead the respondent as an accused. The cheque was dishonored because the payment was stopped. The Court held that the respondentaccused knew all throughout about the cheque, else how could have he asked the Bank to stop the payment. In this background, apt would be to reproduce some of the observations and findings of the Apex Court, which read thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence. 26. The ratio laid down in case of Vijay Vs. Laxman and Another, (2013) 3 SCC 86, at this juncture would be necessary to reproduce, where the Apex Court has held that When cheque is issued by a person who has signed on the cheque and the complainant reasonably discharges the burden that the cheque had been issued towards a lawful payment, it is for the accused to discharge the burden under Section 118 and 139 of the N.I. Act that the cheque had not been issued towards discharge of a legal debt, but, was issued by way of security or any other reason on account of same business transaction as was obtained unlawfully. Profitable it would be to reproduce the relevant observations of the Apex Court in the said decision which read as under : 9. It is undoubtedly true that when a cheque is issued by a person who has signed on the cheque and the complainant reasonably discharges the burden that the cheque had been issued towards a lawful payment, it is for the accused to discharge the burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue course lies upon him. Hence, this Court observed therein, that indisputably, the initial burden was on the complainant but the presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. Thereafter, the presumption raised does not extend to the extent that the cheque was not issued for the discharge of any debt or liability which is not required to be proved by the complainant as this is essentially a question of fact and it is the defence which has to prove that the cheque was not issued towards discharge of a lawful debt. 12. Applying the ratio of the aforesaid case as also the case of K.N. Beena vs. Muniyappan And Anr. (supra), when we examine the facts of this case, we have noticed that although the respondent might have failed to discharge the burden that the cheque which the respondent had issued was not signed by him, yet there appears to be a glaring loophole in the case of the complainant who failed to establish that the cheque in fact had been issued by the respondent towards repayment of personal loan since the complaint was lodged by the complainant without even specifying the date on which the loan was advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciate as to why the cheque which even as per the case of the complainant was towards repayment of loan which was meant to be encashed within two months, was deposited on the date of issuance itself. 27. In wake of settled position of law as to how to appreciate the duly signed cheque in the hands of holder in due course or a drawee, on adverting to the facts of the instant case, the question needs to be addressed as to whether proof of existence of legally enforceable debt, could be established by the Appellant? 28. In the examinationinchief, the complainant has given all the details which have been specified in the complaint itself, which may not be required to be reiterated. The case of the prosecution, in sum and substance, as emerged in oral evidence is that an amount of Rs.36 lakh had been advanced to the respondent which he needed for his business, which was to be set up and for which the complainant appellant was also offered partnership. When the respondent No.2 did not fulfill his promise, he firstly attempted to give back the amount by transferring a parcel of his land. A promissory note also was written by the respondent No.2 accused. However, on account of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unable to give exact dates of advancement of money, but according to him, periodically such amount had been given and a promissory note was issued by the respondent. 32. The source of amount of Rs.36 lakh has been questioned seriously by the learned advocate for the respondent, and a consistent reply of the complainant was that the same was earned from the agricultural income of his relatives. The complainant collected the said amount from various relatives, the details whereof are as under : Sr. No. Source of fund from : Amount 1 His agricultural income Rs.3.50 Lakh 2 His maternal uncle (Masa) Madhabhai Ramanbhai Rs.4 Lakh 3 Dashrathbhai Madhabhai (maternal cousins) (Masi's son) Rs.4 Lakh 4 Ramanbhai Madhabhai Shankardas (Cousin brother) Rs.4 Lakh 5 Dwarkadas Madhavlal Shankardas Patel (cousin and brother of Ramanbhai) Rs.3 Lakh 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .22lakh to Amrutbhai Narandas and the amount of Rs.31,52,900/to Jayantibhai i.e. to the present appellant. As has been agreed to by the respondent, this was given in writing towards the outstanding dues of these persons. 34.3 The outstanding dues, of course, is Rs.36lakh, however, parcel of land was valued at Rs.31,52,900/since the complainant also had agreed to take lesser value than the actual amount due. 34.4 The stamp paper has been purchased by his paternal cousin namely Mr. Bharatbhai Kachrabhai Patel, three to four days prior to the execution of the said writing dated 12.2.2002, the community leader had also met, since, there was no power of attorney executed pursuant to the amount lent to the respondent, which according to the complainant had been given by 23.12.2001, by way of his bonafide gesture, he had agreed to transfer him the part of his land. It is also the case of the complainant that the property of respondent was mortgaged with the bank and hence the sale deed could not be executed in favor of the complainant for a long time and hence, entire deal could not sail through and eventually, the respondent issued a cheque dated 13.10.2002 drawn on State Bank of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y document. However, it was the third party which was seeking permission to submit affidavits, and under which provision they were seeking the same, was unclear. The Court rejected the said application upholding the order passed by the learned Magistrate. And, aggrieved appellant approached this Court by way of Special Criminal Application No.3894 of 2013. 35.6 This Court (Coram : Honourable Mr. Justice G.R. Udhwani, J.) notices that such an application (Exh.66) was made after recording the statement of accused under Section 313 of the Criminal Procedure Code. It was also noted that the respondent No.2 had alleged of kidnapping and of his signatures having been obtained on an agreement for sale of his properties forcefully and he also alleged that the cheque was stolen from the office of his brother. The Court held that in the further statement recorded under section 313 if the allegations are made therein, the burden to make such allegations good is upon the accused. Therefore, the statement made under Section 313 of Cr.P.C. cannot be considered as independent evidence and there can not be any rebuttal of such statement. Referring to the decision of the Apex Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alluring them to park their money in S.B. Fabrics, which, according to him, is the biggest private limited company with the promise of doubling their money, if invested, within three years. 37. It is this manipulation, which generated trust and the investment of crores of rupees had been obtained by him. A list is also produced consisting names of about 33 persons with amount, varying from Rs.1lakh to Rs.4.46crore. A request is made to the Police Officer to investigate into this economic offence. A copy of this also had been sent to the LIC, Branch Manager and the respondent, therefore, had addressed a communication to the presentRespondent, where, he was required to submits his explanation and on 04.07.2017, he had stated that he had no partnership nor any share in or directorship in the said S.B.Fabrics and if, any one has engaged and parked his money in S.B. Fabrics, he has nothing to do with the same. Because, this Company or the partnership is of his two sons, who are independently looking after the business and he, as a father, has no role to play. So far as the present complainant is concerned, whose letter had initiated this inquiry, he had stated that it was the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.2 Meghani nagar 171233 CBI Tilak Road 28/10/02 Rs.15,00,000 Settled and withdrawn 5 Jagdish Kachra 2 Shahi Shivam Soc. Shahibaug Ahmedabad Uncle's Son 25/11/02 A'bad (Rural) 028519 CBI Tilak Road 29/10/02 Rs.2,00,000 Acquitted 6 Bhikha Vithal Patel 11 C Punit Park Shahibaug Ahmedabad Friend 25.11.02 A'bad (Rural) 574143 SBI Girdhar nagar 31/10/02 Rs.61,00,000 Settled and withdrawn 7 Joita jividas Patel At Post Ridrol Mansa, Gandhinagar Relative 24/1/03 Mansa Court 574144 SBI Girdhar nagar 23/11/02 Rs.11,00,000 Convicted and revision pending 8 Ambalal Shivram Patel Post Shabdalpura,Mansa, Gandhinagar Uncle (Mama) 27/1/02 Mansa Court 574146 SBI Girdh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication; (ii) the cases at Sr. Nos.4,6,10,13,14 and 15 have been settled and those complaints have been withdrawn; (iii) the cases at Sr. Nos.5 and 11, he has been acquitted; (iv) the cases at Sr.Nos.7,8 and 9, where, the revision petitions are pending before this Court. 37.2 It would be apt to refer in connection with the case at Sr.No.12, which is Criminal Case No. 1702 of 2002, pending before the Court of the learned Metropolitan Magistrate, Ahmedabad, for an offence under Section 138 of the N.I. Act, the present Respondent had preferred a petition under Article 226 of the Constitution of India read with Section 482 of the Code for quashing and setting aside the said criminal case. The Court has recorded relevant paragraphs of the affidavitinreply filed by the complainant, who was respondent in that matter, stating therein that respondent had been doing business in the benami name of his three sons, namely Chirag Patel, Sachin Patel and Alpesh Patel by starting S.B. Fabrics at Changodar, wherein, all the three sons of the respondent were directors and the money was required by the petitioner for his sons in the business of process house in the name of S.B. Fabrics Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this stage, the deposition of the bank Officer, Vishnubhai Somabhai Patel is to be considered who had stated that he knew the complainant and his Saving Account number is SB / 1000 and the cheque bearing No.574147 was deposited in his account on 30.10.2002, was dishonored, as there was no sufficient balance and hence, return memo dated 01.01.2002 reflects 'Insufficient Funds (Exhibit20). 38.1 Another Bank Officer, Exhibit30, namely, Parmeshwari Bhagwandin Sharma, stated that cheque (Exhibit19) is of their Bank and the account of the respondent had been closed on 25.12.2002. The impugned cheque (Exhibit19) which was presented to the Bank for clearance on 01.11.2002, the same was returned due to insufficient funds. He had also shown the account opening form and the account closing form. 39. It would be apt to refer to Exhibit43, which is an application by Respondent No.2 under his signature, making a request to call some of the persons as defence witnesses. This included the handwriting expert, a responsible officer from LIC, Ahmedabad Branch No.4/841, Tejabhai Bababhai. 40. The Court after hearing both the sides, had ordered, wherein, it denied the request of examinin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . VASANTHAKUMAR VS. VIJAYAKUMARI (Supra), it can be conclusively held that presumption included under Section 139 of the NI Act does include the existence of a legally enforceable debt or liability. Issuance of notice of demand and its non reply by the respondent with specific proof of issuance of cheque by the respondent No.2 can conclude as per the decision of Vijay Vs. Laxman and others (supra) that the appellant, original complainant reasonably discharged the burden that the cheque had been issued towards a lawful payment. 45. It can be also concluded reiteratively that the complainant has succeeded before the trial Court in proving the existence of a legally enforceable debt or liability. Even if the withdrawal of the amounts from various relatives has not come directly from the bank accounts, the complainant succeeded in proving the same through the oral evidence and also by providing accurate details of various relatives from whom, he had collected the amount to be handed over to the respondentaccused. As a result of which, the respondent No.2 had agreed to make the payment to the tune of Rs.31 lakh and odd by giving a portion of his land of the property to the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No.2 cannot be said to have discharged his burden as required of him by the law. 46.2 His attempt to bring on record theory of stolen cheque in his further statement after many years is nothing but a calculative chance or an afterthought, however, neither that attempt nor his detailed cross examination comes nowhere nearer even to discharge his burden, even with a comparatively lighter scale of proof i.e. preponderance of probabilities. 46.3 His line of cross-examination also reveals clearly that the business of S.B. Fabrics (process house) was purchased from father of Mr. Gautam Adani and his sons were looking after this business. He attempted to say that he was not involved personally in running the business and there were certain litigations in respect of the said process house, however, that version, on the contrary, as held by the trial Court, favours the complainant's story. His aspirations for his family and his purchase of a huge business is the cause of his facing various litigations under Section 138 of the N.I. Act. Respondent No.2, in fact, as can be held unhesitantly, failed to dislodge the positive proof. 46.4 Section 139 of the N.I. Act stipulates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d adduces evidence showing the reasonable probability of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man. 48. None of the matters brought on record either by way of crossexamination or by further statement or otherwise, are such which can make the existence of those facts so probable that their existence would be believ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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