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TMI Blog2018 (8) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 2,00,000/- was borrowed by the accused for the interest at the rate of 24% per month. Hence, if the repayment amount is calculated with interest it comes to ₹ 6,00,000/-. But the accused issued cheque only for a sum of ₹ 2,00,000/-. As such the complainant has cleverly issued statutory notice as the cheque was issued only for part of the amount payable by the accused. Therefore, it has to be presumed that the cheque was not at all issued by the accused for any legal enforceable debt. This Court is of the considered opinion that the complainant did not fulfil the requirements as envisaged under Section 138 of Negotiable Instruments Act and it is clear that the complainant has failed to prove his case beyond any reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int. 3. The Trial Court after furnishing the copies to the accused, since the accused pleaded not guilty examined the witnesses, P.W.1 to P.W.3 and marked Ex.P.1 to Ex.P.10 and on the defendant's side, the respondent has marked Ex.D.1. The Trial Court, after considering the evidences and materials available on record convicted the accused for the offence under Section 138 of Negotiable Instruments Act and sentenced him to undergo one year rigorous imprisonment and also awarded to pay compensation of a sum of ₹ 2,00,000/- to be payable by the accused to the complainant under Section 357 of Sub-Clause 3 of Cr.P.C. As against the same, the accused preferred an appeal in C.A.No.153 of 2005 and the learned Additional District and Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel submitted that the appellant has proved his case beyond any reasonable doubts and the learned Magistrate, rightly convicted the accused, but the First Appellate Court, without considering the above facts and circumstances, under wrong perception has reversed the conviction and acquitted the accused. As such, he prayed for restoration of the conviction passed by learned Magistrate. 5. There is no representation on behalf of the respondent/accused. 6. Heard the argument advanced by Mr.G.Vinothkumar, the learned counsel appearing for the appellant. 7. This Court perused the materials available on record. 8. As per the case of the complainant, the accused is running business of Cycle spare parts and with regard to his business t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That apart, even according to the complainant a sum of ₹ 2,00,000/- was borrowed by the accused for the interest at the rate of 24% per month. Hence, if the repayment amount is calculated with interest it comes to ₹ 6,00,000/-. But the accused issued cheque only for a sum of ₹ 2,00,000/-. As such the complainant has cleverly issued statutory notice as the cheque was issued only for part of the amount payable by the accused. Therefore, it has to be presumed that the cheque was not at all issued by the accused for any legal enforceable debt. 10. In this regard, it is appropriate to consider the judgment rendered by the Hon'ble Supreme Court of India reported in CDJ 2009 SC 1411 Jugesh Sehgal V. Shamsher Singh Gogi in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Bhat V. Dattatraya G.Hegde in paragraph Nos.34,35 and 44 which reads as follows:- 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defense on the part of an accused is preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. 35) A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not,must therefore, be determined keeping in view the other evidence on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasised. It is not suggested that at negative can never be proved but there are cased where such difficult are faced by the accused e.g honest and reasonable mistake of fact. 12. In view of the above discussions and in view of the discussions cited supra, this Court is of the considered opinion that the complainant did not fulfil the requirements as envisaged under Section 138 of Negotiable Instruments Act and it is clear that the complainant has failed to prove his case beyond any reasonable doubts. Accordingly, the lower appellate Court rightly acquitted the accused and reversed the judgment passed by the learned Magistrate, which does not warrant any interference from this Court. Accordingly, this Criminal Appeal is liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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