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TMI Blog2018 (9) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. Likewise, as per Ex.P.8, ₹ 15,636/- was paid to the appellant through demand draft. The said facts are admitted by the complainant. Furthermore, it is an admitted fact that the date, in which, the cheque was issued is a Holiday. Both the respondents are running the Company, issuing the cheque in the Holiday is also create a doubt, whether the transaction as stated by the appellant had happened or not. Further, at the time of filing the complaint, before the trial Court, the appellant did not enclose the copy of invoice to show his bonafide. However, only during the time of trial, he produced the invoice. In the business community, it is the common practice to receive the blank cheque or filled cheque immediately after sending the materials. But in this case, the evidence of P.W.1 shows such practice is not adopted in this case - The case of the appellant suffers through two reasons; [i] the material alteration stated by the respondents has not been properly explained, and [ii] the respondents raised a reasonable doubt in respect of his liability. Hence, there is no need to interfere with the findings arrived at by the trial Judge. The order of acquittal is h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint for the offence under Section 138 of N.I. Act. 5. In the trial Court, the complainant examined himself as P.W.1, besides 11 documents were marked as Ex.P.1 to Ex.P.11. On the side of the respondents, 3 witnesses were examined as D.W.1 to D.W.3 and 11 documents were exhibited as D.1 to D.11. After concluding the trial, the learned XV Metropolitan Magistrate, George Town, Chennai, convicted the accused as stated in the first paragraph of this judgment. 6. After elaborate enquiry, on 24.10.2009, the learned V Additional Sessions Judge, Chennai, allowed the appeal and set aside the order of conviction. Against which, now the appellant being the complainant in the trial Court approached this Court for setting aside the judgment passed by the learned V Additional Sessions Court, Chennai and for restoring the order of conviction passed by the learned XV Metropolitan Magistrate, George Town, Chennai. 7. When the appeal is taken up for consideration, I have heard the arguments of Mr.J.Jaseem Mohammed, learned counsel appearing for the appellant, Mr.P.V.Sanjeev, learned counsel appearing for the respondents and also perused the records carefully. 8. The learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for enhancement. 13. In usual course, only the bank authorities are handle the cheques in day-to-day work. So, the evidence given by the bank officers alone are the competent evidence to solve the said issue. 14. In the trial Court, the Assistant Manager of Union Bank of India was examined as D.W.1, he has stated that the cheque under dispute has came to his bank on 30.12.2000 for enhancement. Further, he has stated that, if any correction is made in the date or in the amount, the full signature of drawer is necessary for passing the cheque. Further, the alteration made in Ex.P.1 is the permitting alteration but not a material alteration. However, on going through the Ex.P.1 as already stated that there is no signature found in the material alteration. So, with regard to the material alteration, the evidence given by D.W.1 is contradictory in nature. 15. Moreover, in the trial Court, the Branch Manager of the Lakshmi Vilas Bank was examined as D.W.2, he has stated in his evidence that for the correction made in the cheque, the full signature of drawer is necessary. Further, in the cross-examination after seeing the Ex.P.1, he has specifically stated that the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. 27. ....... 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. 19. Accordingly, in this case also, the duty cast upon the respondents to rebut the presumption mandated under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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