2018 (3) TMI 641 - HC - Indian Laws

Leave to appeal against the judgment 19th December, 2015 - return of security cheques - case of petitioner is that the claim of the respondent of return of the amount to the petitioner is not fortified by the Income-tax return of the petitioner - Held that - Once the petitioner proves its case, presumption is raised under Section 139 of the Negotiable Instruments Act which the accused is required to rebut, however the standard of proof required to rebut the presumption is not beyond reasonable doubt and if by preponderance of probability the respondent is able to rebut the presumption the same is sufficient. Merely because there is a contradiction in the cash amount being received from the sale of a particular property between the evidence of the respondent and his mother cannot be a ground to discard the defence. Petition dismissed.

Summary

Issues:
1. Delay in filing leave to appeal petition.
2. Appeal against acquittal under Section 138 of the Negotiable Instruments Act.
3. Proof required in a complaint under Section 138.
4. Rebutting the presumption under Section 139.
5. Witness testimonies and contradictions.
6. Interference with the Trial Court's decision.

Analysis:

1. The judgment addresses the issue of condoning a delay of 74 days in filing the leave to appeal petition. The court, for reasons stated in the application, condoned the delay and disposed of the application accordingly.

2. The petitioner sought leave to appeal against the respondent's acquittal for an offence under Section 138 of the Negotiable Instruments Act. The petitioner alleged providing a friendly loan to the respondent, who issued three cheques that were returned due to insufficient funds, leading to the complaint under Section 138.

3. The legal position regarding proof in a complaint under Section 138 was discussed. Once the petitioner proves the case, a presumption under Section 139 is raised, which the accused must rebut. The standard of proof required to rebut the presumption is not beyond reasonable doubt but by preponderance of probability.

4. The respondent claimed that the amount was returned in cash, supported by witness testimonies. An independent witness corroborated that the money was paid in cash, and the respondent repeatedly asked for the cheques, which the complainant refused to return until the outstanding amount was cleared.

5. The testimonies of defence witnesses, including the respondent and his mother, were found consistent and not shaken in cross-examination. Despite contradictions in the cash amount received from a property sale, the Trial Court's decision was deemed plausible, warranting no interference.

6. Ultimately, the court declined to grant leave to appeal and dismissed the petition, upholding the Trial Court's decision of acquitting the respondent under Section 138 of the Negotiable Instruments Act.