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TMI Blog2012 (10) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed that when the cheque was presented by the respondent with his bankers, the same was dishonoured due to insufficiency of funds in the account of the appellant. It was further claimed that though the respondent intimated about the dishonour of the cheque by a lawyer's notice dated 30.03.2005 served on the appellant on 31.03.2005, she came forward with a reply taking the stand that no amount was due and that the respondent stealthily removed two cheques from the custody of the appellant of which the present one was forged and presented for clearance. Before the trial Court the appellant pleaded not guilty. On behalf of the respondent Exhibits P- 1 to P-20 were marked and the respondent examined himself as P.W.1. On behalf of the appellant Exhibits D-1 to D-4 series were marked, in the course of cross-examination of P.W.1. No oral evidence was adduced on behalf of the appellant. When the incriminating circumstances were put against the appellant under Section 313 of Cr.P.C. she denied the same and filed a written statement. The trial Court on a detailed analysis of the evidence, placed before it, ultimately held that the appellant was able to rebut the presumption and that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o by the High Court in the impugned judgment has been completely omitted to be considered while reversing the order of acquittal of the trial Court. The learned Senior Counsel, therefore, contended that the impugned judgment of the High Court was liable to be set aside. Apart from the above submission, the learned Senior Counsel by referring to Sections 8, 9, 138, 139 and 142 of the Act sought to raise a contention based on the specific expression "Holder" and "Holder in due course" used in those provisions to contend that the respondent cannot be said to have fulfilled the requirement of the said provisions in order to avail the benefits under the provisions of the Act. Learned Senior Counsel relied upon the decision of this Court, M.S. Narayana Menon alias Mani Vs. State of Kerala and another reported in (2006) 6 SCC 39, in support of his submissions. As against the above submissions Mr. V. Giri, Learned Senior Counsel for the respondent contended that the appellant was prevaricating in her stand as regards the issuance of the cheque, namely, the one in her reply to the lawyer's notice and the other before the Court, in her written statement. The learned Senior Counsel by refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tating that the same was not warranted. In order to appreciate the correctness of the impugned judgment of the High Court, as well as, that of the trial Court, it will be worthwhile to refer to certain conclusions drawn by the learned trial Judge by making specific reference to the various documentary evidence placed before it vis-à-vis the oral version of the complainant himself. The significant admission of the respondent as P.W.1 was noted by the trial Court as under: The construction work entrusted with the respondent had to be completed for a total sum of Rs.78,70,678/- as stated in Exhibit D-3. Respondent admitted that he had not completed the work and that he would have got payment only after the measurement of the quantity of the work done. All the amounts received from the accused were noted in Exhibit P- 9. It was admitted that a sum of Rs.12,60,100/- mentioned in Exhibit D-4 series voucher was not noted in Exhibit P-9. The amount received by him from the accused for conducting earth work was also not included in Exhibit P-9. The respondent received various amounts by cheques and cash. He, however, denied the suggestion that the accused gave two cheques to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission, the learned counsel has taken me through the documents namely, Ext.D3, Exts.P6 to P8 final bills and Ext.D4(A) to D4(F) series vouchers and also Ext.D4(J) voucher. Regarding this submission, I am not proposed to enter into any finding on merit as the same is unwarranted in the present case considering the nature o f allegations and claim contained in this case . But from the materials and evidence on record , it is crysta l clear that the accused miserably failed to produce whatever records which she was in possession to show that no amount is due from the accused to the complainant . On the other hand, the attempt was to interpret and explain the documents produced by the complainant. Admittedly, no payment was made to the complainant otherwise than through the vouchers and cheques. If that be so, by producing those documents, the defence plea can be established. But there was no attempt in this regard. When the accused has admitted the transaction claimed by the complainant and the complainant has established his claim that there was outstanding amounts due from the accused to the complainant out of the contract work undertaken by him under Ext.D3 agreement, it is for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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