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2022 (1) TMI 191 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - existence of transaction and consideration or not - presumption under Section 139 of the Negotiable Instruments Act - preponderance of probability - whether the revision petitioner/accused discharged the burden of proof with positive evidence by probablising the suggestive case? - HELD THAT - On perusal of Ex.P1 marked through D.W.1, it is found that the complainant has no means to advance such a huge amount of ₹ 4 lakhs and it is only is oral evidence. However, Ex.D1 statement of bank accounts shows that it never exceeded ₹ 10,000/- the account of company at relevant point of time and the entire amount ODT only assumes significance. It is the burden on the shoulder of the accused to prove non existence passing of consideration for the issuance of cheque. The same can be either by direct or by bringing on record, the preponderance of the probability or by reference of the suggestive upon which he relied on. It may not insist upon the accused to disprove the existence of the consideration by leading direct evidence as the leading negative evidence neither possible nor contemplated. This Court finds that the revision petitioner/accused has successfully demonstrated before the Court that the private complainant does not possess sufficient source of income to lend to ₹ 4 lakhs at relevant point of time - in the complaint and in the deposition, P.W.1 has stated that A3 has issued the cheque and hence it is found that the evidence of P.W.1 regarding passing of consideration for A1 and A2 issuance of cheque by A3 suffers from material implementation amounting to material contradiction on the point of passing of consideration and issuance of the cheque by A3 therefor. In the circumstances, the cloud has been created has to be issuance of the cheque by A3 to the private complainant. Before the trial Court, A2 was acquitted and there is no appeal as against the acquittal of A2 also assumes significance and hence I find that A3 has successfully demonstrated that there does not exists any legally enforceable debt between the respondent- complainant and the accused and theory forwarded by the private complainant in Ex.P3 complaint is totally different from that of the complaint and the P.W.1 evidence passing off consideration for issuance of the cheque by A3 is under cloud - In the absence of any other explanation by the complainant that he had some other account or any evidence to show the source of income after the rebuttal, this Court holds that the accused has successfully demonstrated the rebuttal of presumption and then it becomes duty has caused upon the private complaint to demonstrate his source of income. Admittedly, no re-examination or any additional documents was marked - the order of conviction passed by both the Courts below is erroneous on the facts and circumstances of the case - Criminal Revision Petition is allowed.
Issues:
1. Revision petition against judgment passed by Additional Sessions Judge and Judicial Magistrate. 2. Dispute over issuance of cheque under Section 138 of the Negotiable Instruments Act. 3. Burden of proof on the accused to rebut statutory presumption. 4. Examination of evidence regarding financial capacity and source of income. 5. Contradictions in evidence regarding consideration and issuance of cheque. 6. Rebuttal of presumption by accused. 7. Acquittal of one accused and impact on the case. 8. Lack of evidence on source of income by complainant. Analysis: 1. The revision petition challenged the judgment confirming conviction under Section 138 of the Negotiable Instruments Act by the Additional Sessions Judge and Judicial Magistrate. The petitioner contended that the cheque was not issued to the complainant but to a partnership firm, raising doubts on the transaction's legality. 2. The complainant argued that the cheque was duly served on the accused, invoking the presumption under Section 139 of the Act. The defense questioned the financial capacity of the complainant to lend the amount, citing discrepancies in accounts and transactions. 3. The defense relied on Supreme Court decisions and bank records to establish the complainant's lack of financial means to lend the alleged amount. The accused contended that no legally enforceable debt existed between them and the complainant. 4. The Court examined the evidence, including bank statements and witness testimonies, to determine the financial capacity of the parties involved. The defense successfully challenged the presumption under Section 139 by demonstrating the complainant's insufficient source of income. 5. Contradictions in the evidence regarding consideration and issuance of the cheque by one of the accused raised doubts about the transaction's legality. The Court noted discrepancies in the complainant's financial records, further weakening the case against the accused. 6. The acquittal of one accused and lack of evidence on the complainant's source of income played a crucial role in the Court's decision to set aside the conviction. The accused effectively rebutted the presumption under the Act, shifting the burden of proof to the complainant. 7. In the absence of additional evidence or explanations from the complainant, the Court found the conviction erroneous and set it aside. The judgment highlighted the importance of establishing a legally enforceable debt and the burden of proof in cases under the Negotiable Instruments Act.
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