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TMI Blog2024 (10) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... with the remarks "Insufficient Funds" vide return memo dated 04.04.2011. It is alleged that thereafter the petitioner sent a legal demand notice dated 16.04.2011. It is alleged that the payment was not made even within 15 days of the receipt of the demand notice, consequently a complaint under Section 138 of the NI Act was filed. 3. Respondent No. 2 in his statement under Section 313 of the Code of Criminal Procedure, 1973 ('CrPC') denied taking any loan from the petitioner. He stated that he was a partner at Respondent No. 1 alongwith the petitioner and 14 other people. He stated that he alongwith one Anil Aggarwal, and Harish Kumar Singh had given approximately Rs.1.2 crores to the petitioner, who upon demand, sent a notice demanding Rs.88 lakhs in order to falsely implicate Respondent No. 2. He stated that the petitioner and accused Vishnu Partap Singh (allegedly relative of the petitioner) in connivance with each other got one cheque book issued for the account of Respondent No. 1 firm without Respondent No.2's knowledge and forged his signatures thereupon. Respondent No. 2 further denied issuing the cheque and his signatures on the cheque. 4. The learned Trial Court by impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersed as the same is only based on conjectures, and not cogent evidence. He submitted that the learned Trial Court erred in finding that the payment of Rs.5,00,000/- vide debit entry dated 04.03.2010 as shown to be made by the respondents to the petitioner was towards the part payment of money due as covered by the cheques in question. He submitted that the said amount was never paid by the respondents. He submitted that the learned Trial Court did not take into account the fact that the said sum of Rs.5,00,000/- was 'debited' from the petitioner's firm's account and not 'credited' to his account. He consequently submitted that the respondents never repaid Rs.5,00,000/-. 10. He submitted that all the presumptions under Section 139 and 118(a) of the NI Act stood against the respondents and in favour of the petitioner. He submitted that the onus was not on the petitioner to show his source of income to establish his financial capacity to lend the money to the accused persons. He submitted that the presumption under Sections 118(a) and 139 of the NI Act could not have been rebutted by merely denying liability. He submitted that the respondents failed to produce material evidence to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents, yet he failed to lead any documentary evidence to show the transaction through RTGS or cheque. He submitted that the only transaction of Rs.5,00,000/- which was relied upon by the petitioner was done by the father of the petitioner and not the petitioner himself. 14. He submitted that the issued cheques in question merely bore the stamp of Respondent No. 1, a partnership firm, but did not bear the name of Respondent No. 2. He submitted that as per Section 138 of the NI Act, the cheque must have been drawn by the respondent. He submitted that Respondent No. 2 proved through documents from the bank that the cheques in question belonged to cheque book issued by Punjab National Bank to Vishnu Partap Singh and not to Respondent No. 2. He submitted that Vishnu Partap Singh in his examination himself admitted that he used to sign many papers of the firm whenever he was asked to do so by the petitioner. He submitted that the mere fact that the petitioner has not initiated any proceedings against Vishnu Partap Singh evidences their conspiracy. 15. He submitted that the objection of the petitioner with regard to the cheque return memo is unsustainable since it is a genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lve a problem, I'd spend 55 minutes thinking about the problem and 5 minutes thinking about solutions." Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one's ability to identify the problem. A well-defined problem often contains its own solution within it. 58. Drawing from Einstein's quote, if the issue had been properly framed after careful thought and application of judicial mind, and the onus correctly fixed, perhaps, the outcome at trial would have been very different and this litigation might not have travelled all the way up to this Court. Xxx xxx xxx 61. The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on the part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque. (emphasis supplied) 21. At the outset, the learned Trial Court, by impugned judgment, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int/ demand notice or the evidence. Once the accused successfully raises a probable defence to the satisfaction of the Court, his burden is discharged, and the presumption 'disappears.' The burden then shifts upon the complainant, who then has to prove the existence of such debt as a matter of fact. The Hon'ble Apex Court in Rajesh Jain v. Ajay Singh (supra), in this regard has observed as under: "41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513] xxx 44. The accused may adduce direct evidence to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities that there existed no debt/liability in the manner pleaded by the petitioner. Respondent No. 2, in his defence evidence, relied upon the testimony of the petitioner to argue that despite the fact that the petitioner contended that a sum of Rs.43,00,000/- was deposited in the account on various dates, no endeavour was made to prove the said accounts. Respondent No. 2 also disputed the testimony of Vishnu Pratap Singh, by highlighting that even though he claims that he was not a partner but merely an employee in the firm, Vishnu Pratap Singh still could not even depose the exact amount advanced by the petitioner to Respondent No. 1. Respondent No. 2, thus, submitted that his testimony should not be relied upon. In view of the aforesaid, the learned Trial Court rightly noted that Respondent No. 2 had taken a consistent stand that he had not availed any loan from the petitioner, and was able to dislodge the presumptions raised against him. 27. It is pertinent to note that in terms of the dictum of the Hon'ble Apex Court in Rajesh Jain v. Ajay Singh (supra), once Respondent No. 2 was able to raise a probable defence by either leading direct or circumstantial evidence to show tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised against him, the onus was still on the petitioner to show that there existed a debt/liability as on the date appearing on the impugned cheques. The rationale behind the order of acquittal in the present case was not based on the observation whether the sum of Rs.5,00,000/- was repaid or not but the fact that the petitioner had failed to prove that there existed any debt/liability on date, or show the mode and manner of the advancement of loan, or lead any evidence/documentary proof so as to establish how the sum of Rs.48,00,000/- was advanced. Respondent No. 2, already having dislodged his burden, it was on the petitioner to show the existence of the debt, that too, as a matter of fact. In fact, once Respondent No. 2 had raised a probable defence to the satisfaction of the Court, the presumptions under Sections 118(a) or 139 of the NI Act were no longer in the favour of the petitioner. For this reason, the petitioner having failed to lead evidence to show the existence of the debt/liability, his contentions that the learned Trial Court erred in observing that Rs.5,00,000 was credited, or that the presumptions under Section 118 and 139 of the NI Act were in his favour, do n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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