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TMI Blog2017 (7) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent/Accused found therein were not disputed. Therefore, to prove or to bring it to the notice of the Court concerned, the facts which are especially within the knowledge of the Respondent/Accused, this Court opines that the evidence of the Respondent/Accused is very much necessary. Therefore, under the existing circumstances, this Court comes to an irresistible and inescapable conclusion that the Remand of the entire subject matter in issue is a Fair, Equitable and prudent course of action. In the result, the Criminal Appeal is allowed. The Judgments of the First Appellate Court as well as the trial Court are set aside for the reasons assigned by this Court in this Appeal. The entire subject matter in issue is remanded back to the trial Court for fresh disposal in the manner known to Law and in accordance with Law. - Criminal Appeal No.160 of 2017 - - - Dated:- 27-3-2017 - MR. M.VENUGOPAL, J. For The Appellant : Mr.Sri.S.Natana Rajan For The Respondent : Mr.R.Murugabharathi JUDGMENT The Appellant/Respondent/Complainant has filed the instant Criminal Appeal before this Court, being dissatisfied with the Judgment of the Learned III Additional Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused was not able to contest the existence of legally enforceable debt or liability. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes in to play and the same has not been rebutted even with regard to the materials submitted by the complainant and hence this court is of the view that ExP1 to ExP3 cheque leaves were issued for discharging the subsisting liability and that has been proved by PW1/Complainant. Hence the contentions raised are not fatal to the prosecution. and found that the Complainant (Appellant before this Court) had proved the guilt of the Respondent/Accused beyond all reasonable doubt and sentenced him to undergo six months Simple Imprisonment and imposed a fine of ₹ 5,000/-, in default of payment of fine, the Respondent/Accused was directed to undergo Simple Imprisonment for one month. 5.Questioning the validity and legality of the Judgment of Acquittal passed by the First Appellate Court in C.A.No.155 of 2015 dated 11.08.2016, the Appellant/Respondent/Complainant has preferred the instant Criminal Appeal before this Court, by contending that the First Appellate Court had failed to note that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alleged date, as stated by the Respondent and also not to pass the cheques covered under Ex.D5. 12.The Learned Counsel for the Appellant strenuously contends that for a 'Hand Loan', there would not be any other document except the cheques issued by the Respondent in respect of the loan received by her from the Appellant. 13.The Learned Counsel for the Appellant proceeds to state that Sections 118 and 139 of the Negotiable Instruments Act, 1881 draw a presumption to the effect that once the signature in Negotiable Instruments Act is not disputed, the Drawer of that instrument admits her liability under the said instrument to the 'Drawee' of that Instrument. 14.Conversely, it is the submission of the Learned Counsel for the Respondent/Accused that in the present case, the First Appellate Court at paragraph 30 of its Judgment in C.A.No.155 of 2015, had observed that 'the notice was served not upon the accused but upon an unknown person' and ultimately opined that Ex.P7 Notice was not served upon the Respondent/Accused and therefore, it was held that the Appellant/Complainant had not complied with the requirement of Section 138(b) of the Negotiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint before the trial Court which was taken on file in S.T.C.No.599 of 2009. 20.P.W.1 (the Appellant/Complainant), in his evidence, had deposed that Exs.P1 to P3 were the Cheques issued by the Respondent /Accused on 27.05.2009, 28.05.2009 and 29.05.2009 for ₹ 2,50,000/- each and the Return Memos from the Bank were Exs.P4 to P6 and Ex.P7 is the Office Copy of the Appellant's Lawyer's Notice issued to the Respondent/Accused and Ex.P8 was the Acknowledgement. 21.The Appellant/Complainant, in his Proof Affidavit before the trial Court, had stated that on 26.01.2009 the Respondent/Accused received a sum of ₹ 15,00,000/- as Hand Loan and gave six signed different dates cheques to him and that he gave the money to her after receiving the total six cheques and that the present complaint was filed only in respect of three cheques and in respect of three cheques another case was filed in S.T.C.No.600 of 2009 and that the three case cheques which were deposited for collection by him at the Respondent/Accused Canara Bank got returned because of the reason that 'Insufficient Funds' and therefore, the Complaint was filed by him. 22.P.W.1, in his cross exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by someone and therefore, the Legal Notice Ex.P7 addressed to the Respondent/Accused through registered post was issued and the same satisfies the requirement of Section 138(b) of the Negotiable Instruments Act. Further, a stand is taken on behalf of the Appellant/Complainant that in the instant case, there is no evasion of service of notice by the Respondent/Accused. But, on her behalf, some one had received and therefore, it is a Proper Service. 28.Coming to the aspect that in the Income Tax Statement, the Appellant/Complainant had not shown such a huge amount having been lent by him to the Respondent/Accused, it is to be pointed out that merely because an amount/sum purportedly lent to the Respondent/Accused was not reflected in the Income Tax Return or not shown in respect of the Assessee concerned, one cannot immediately jump to a conclusion that no such sum was advanced to the Respondent/Accused. 29.Admittedly, in the instant case, no pronote/pronotes were executed by the Respondent/Accused. Moreover, for filling up of a cheque leave, the handwriting used, merely because it was different from the signature of the Respondent/Accused and the ink used to sign was differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to subject to cross examination. Section 106 of the Indian Evidence Act is an exception to the General Rule to governing the 'onus of proof' applies to such matters of defence which were supposed to be specially within the knowledge of the concerned litigant. Of course, the standard of proof by the Respondent/Accused is not so high as in the case of prosecution. It is only when the Prosecution had adduced evidence, if believed, which would result in conviction, then, the onus of proving need not would lie on the Accused under Section 106 of the Indian evidence Act. 33.In the case on hand, admittedly, the Respondent/Accused had not disputed her signature seen in the cheques. Ordinarily, the presumption under Section 118 of the Indian Evidence Act would come into operative play. Furthermore, as per Section 114 of the Indian Evidence Act, a presumption on facts is to be raised to assist the Court for deciding as to the burden of proving in a set of circumstances. 34.Suffice it for this Court to significantly point out that Section 114 of the Indian Evidence Act, 1872 enables the Court to presume the existence of probable facts, regard being had to the human conduct and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption that the service of notice was effected when it is sent to the correct address by Registered Post. As a matter of fact, the Presumption as regards service is not a conclusive one and the same is a rebuttable one. The only difference between the Presumption of Law under Section 27 of the General Clauses Act and the Presumption of Fact under Section 114 of the Indian Evidence Act, 1872 is that in the former case, a presumption was to be made by the Court, while in the latter case, it may or may not be made, of course, based on the facts and circumstances of a given case. Even a 'Presumption of Law' is a rebuttable one, unless it is made unrebuttable by some provision of Law. 39.In short, under Section 114 of the Indian Evidence Act and under Section 27 of the General Clauses Act, a Presumption can be raised that a notice stood served on a person. Besides this, a notice whether was received or served on the addressee is a question of fact to be determined at the time of trial of a case. Further, the Presumption under Section 114 of the Indian Evidence Act is a Presumption of Fact and it is for a Court of Law to decide about the said presumption depending upon the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Court in S.T.C.No.599 of 2009 dated 26.10.2015 and sets aside the same, to prevent an aberration of Justice. Consequently, the Criminal Appeal succeeds. 41.In the result, the Criminal Appeal is allowed. The Judgments of the First Appellate Court as well as the trial Court are set aside for the reasons assigned by this Court in this Appeal. The entire subject matter in issue is remanded back to the trial Court for fresh disposal in the manner known to Law and in accordance with Law. Considering the peculiar facts and circumstances, the Respondent/Accused is directed to examine herself as a witness on her side so as to prove the necessary facts especially within her knowledge and to subject herself to cross examination. The trial Court shall permit the Respondent/ Accused to let in oral and documentary evidence by examining other witnesses on her side also if she so desires/chooses. Also, it is open to the Appellant/Complainant to examine any other witness/witnesses [other than the one already examined]. The trial Court is directed to restore the case within in a period of two weeks from the date of receipt of copy of this Judgment. Considering the fact that the cheque trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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