2021 (6) TMI 220 - HC - Indian Laws

Dishonor of Cheque - standard of proof for rebuttal presumption - Acquittal of the accussed - preponderance of the probability - HELD THAT - Admittedly, neither any oral nor any documentary evidences had been adduced by the complainant to prove that such a huge amount of ₹ 6 lakhs was paid to the accused. Though, the complainant had later stated that the amounts were arranged through his friends, none of his friends were examined to prove the same. Further, it is also highly doubtful that such a huge amount could have been lent to the accused on the strength a post dated cheque. The accused had probabilised his defence by preponderance of probability by letting evidence to prove that the complainant was not having financial capacity to pay/lend such a huge amount of ₹ 6 lakhs and that the cheque was not drawn for consideration and it was not issued for the discharge, in whole or in part, of any debt or liability. The accused has discharged the burden under Section 118(a) and 139 of the Negotiable Instrument Act satisfactorily by probablising valid defence and when the burden having been discharged, the evidential burden had shifted and moved on to the complainant which, he had failed to prove and therefore, the presumption under Section 118(a) and 139 of the Negotiable Instrument Act will not come again to the aid or rescue of the complainant - The Courts below have failed to appreciate the evidences on record with proper perspectives and have erred in convicting the petitioner/accused on perverse finding. Necessarily, the petitioner/accused has to be acquitted. The Criminal Revision case is Allowed.

Issues Involved:

1. Legality of the conviction under Section 138 of the Negotiable Instruments Act.
2. Financial capacity of the complainant to lend ?6 lakhs.
3. Probable defense raised by the accused regarding the issuance of the cheque.
4. Evaluation of evidence and presumption under Sections 118(a) and 139 of the Negotiable Instruments Act.
5. Role of appellate and revisional courts in re-appreciating evidence.

Detailed Analysis:

1. Legality of the Conviction under Section 138 of the Negotiable Instruments Act:

The petitioner challenged the conviction dated 28.02.2013 by the I Additional District and Sessions Judge, Coimbatore, which confirmed the trial court's judgment finding the petitioner guilty under Section 138 of the Negotiable Instruments Act. The trial court had sentenced the petitioner to one year of simple imprisonment and a fine of ?5,000/-, in default to undergo three months of simple imprisonment.

2. Financial Capacity of the Complainant to Lend ?6 Lakhs:

The accused contended that the complainant lacked the financial capacity to lend ?6 lakhs. The complainant had only ?2,000/- in his account at any point, as evidenced by the bank statement (Ex.D7). The accused argued that the complainant's claim of borrowing money from friends was unsubstantiated as no friends were examined to verify this claim.

3. Probable Defense Raised by the Accused Regarding the Issuance of the Cheque:

The accused argued that the cheque was handed over to one Shanthakumar as part of a financial settlement and not to the complainant. The accused also provided evidence (Exs.D1 and D2) showing he was not in town on the alleged date of borrowing the money. The accused further highlighted that the complainant had filed similar complaints against other individuals, raising doubts about the legitimacy of the claim.

4. Evaluation of Evidence and Presumption under Sections 118(a) and 139 of the Negotiable Instruments Act:

The court acknowledged that while Sections 118(a) and 139 of the Negotiable Instruments Act create a presumption in favor of the complainant, this presumption is rebuttable. The accused successfully rebutted the presumption by demonstrating the complainant's lack of financial capacity and the improbability of the alleged loan transaction. The court noted that the complainant failed to provide oral or documentary evidence to prove that ?6 lakhs was paid to the accused.

5. Role of Appellate and Revisional Courts in Re-appreciating Evidence:

The court emphasized that while revisional courts generally do not re-appreciate evidence, they can do so when there is a wrong appreciation of facts or evidence. The court found that the lower courts failed to properly analyze the evidence and materials on record, leading to a perverse finding.

Conclusion:

The court concluded that the accused had satisfactorily discharged the burden of rebutting the presumption under Sections 118(a) and 139 of the Negotiable Instruments Act. The complainant failed to prove the financial capacity to lend ?6 lakhs. Consequently, the court set aside the conviction and sentence, acquitting the petitioner of all charges under Section 138 of the Negotiable Instruments Act. The bail bond was canceled, and the fine amount, if paid, was ordered to be refunded. The court directed the registry to send the original records to the respective courts and granted fees to the Legal Aid Counsel.

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