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TMI Blog2022 (11) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed that owing to family relations, respondent-accused took friendly loan from the complainant on different dates arranging from August 2012 to October 2012. In total, the amount lent by the complainant was Rs.14 lakhs. Despite repeated requests, the accused failed to repay the loan and consequently a meeting was conveyed wherein common friend and relatives participated. In such meeting, respondent admitted his liability and in discharge thereof, he issued a cheque in dispute for an amount of Rs.14 lakhs. On presentation, cheque was dishonoured for the reason 'funds insufficient' vide written memo dated 15.10.2013. The complainant served statutory demand notice upon the respondent dated 08.11.2013 through registered A.D. After r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 313 C.P.C has stated that he had taken a loan of Rs 1 lakh from complainant, which he has retuned. The defence of accused is that the complainant has misused his earlier cheque which was handed over to complainant security of earlier loan. Thus, the complainant is in wrongful possession of the cheque in question. If the complainant is in wrongful possession of the cheque in question, the accused could have lodged any kind of protest regarding the same. Perusal of the file shows that no such protest has ever been lodged, till date. Also, if the earlier loan was paid the accused should have taken steps to demand his cheque back, or lodged any kind of protest or at least stopped payment of the cheque through his bankers, which accused has veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. Swaran Singh another 2008 (4) RCR (Civil) 434 (P&H). Perusal of the file shows that no such protest has ever been lodged till date. If that was the case the accused could have got the payment of the cheque in question stopped by his bankers, which has not been done in the present case. Hence, these arguments of defence counsel are not acceptable. 19. The argument that the complainant had no source of funds to advance the amount of Rs.14 Lacs is also not convincing as the complainant in his cross-examination has clearly stated that the source of funds were compensation of land acquisition. Complainant has specifically stated that he had withdrawn the said amount from his bank accounts with Allahabad Bank and Gurgaon Gramin Bank. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 SS of Income Tax Act 1961 ordinarily any advance beyond Rs. 20,000/- is given by way of Account Payee Cheque. Still further, the complainant has not even produced his Income Tax Returns to show that he had disclosed the said fact of advancing of loan of huge amount of Rs. 14 lacs to the accused. In Krishna Janardhan Bhat Versus Dattatrayat G.Hegde 2008(4) SCC 54 the Hon'ble Supreme Court held that ordinarily in terms of section 269 SS of the Income Tax Act, any advance taken by way of any loan of more than Rs. 20,000 was to be made by way of an account payee cheque only. In B. Girish Versus S.Ramaiah 2011(4) CCC 310 (Karnataka), it was held as under:- "When a substantial amount of Rs. 50,000/- was lent, it is reasonable to exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or 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. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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