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TMI Blog2020 (2) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant. Therefore, applying the test of preponderance of probabilities, this Court is of the considered opinion that definitely there exists a rebuttal by the petitioner with regard to the materials placed by the complainant and in such a scenario, prudence should have been exercised by subjecting the cheque to expert opinion so as to authenticate the signature on the cheque. There is no dispute that a case u/s 138 of the Negotiable Instruments Act was pursued against the petitioner's husband, which ultimately ended in acquittal and the same has attained finality as no appeal/revision has been filed against the said order. That being the case, the amount, which is the subject matter of the present case, having been accounted for in the parallel proceedings against the petitioner's husband, and the further fact that the same judicial officer has conducted the appellate proceedings and rendered a finding in the said case, this Court is at a loss to understand as to what stood in the way of the lower appellate court to record a different finding on the same set of facts. However, this Court is not amplifying any further on the said issue, except to hold that the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Judicial Magistrate, Avinashi. 3. The trial court, caused summons to the accused/petitioner and after trial, the trial court convicted the accused and sentenced her to simple imprisonment for a period of one year together with a fine of ₹ 5,000/-. Against the said conviction, the petitioner herein preferred appeal before the Addl. District Sessions Court, Coimbatore @ Tirupur in C.A. No.61/09, which confirmed the conviction and sentence passed by the trial court. Assailing the said judgment of conviction and the consequent sentence, the present revision has been preferred by the petitioner/accused. 4. Learned counsel appearing for the petitioner stressed that though the lower appellate court has accepted that there are many discrepancies not only in the evidence, but has also held that certain crucial facts have not been proved in a manner known to law by the complainant, yet, thrusting the burden on the shoulder of the petitioner/accused, the lower appellate court has went on to confirm the conviction on the petitioner. It is the stand of the petitioner that the account, from which the cheque is said to have been issued, stood closed even in the year 2001, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner, this Court should be circumspect in interfering with the concurrent findings rendered by the courts below. It is the further submission of the learned counsel for the respondent that the signature of the petitioner in the cheque has not been disputed and inspite of causing of statutory notice, except for replying to the notice stating that no legally enforceable right exists, the petitioner has not placed any materials to repudiate the said plea of the respondent. It is the further submission of the learned counsel for the petitioner that had the petitioner been really truthful, the petitioner ought to have entered the box and given evidence disputing the claim of the respondent and in the absence of the same, the findings arrived at by the courts below do not call for any interference, as the findings are well considered on the basis of the materials available on record. 6. This Court paid its careful consideration to the rival contentions advanced on behalf of the petitioner and the respondent and also perused the materials available on record as also the findings rendered by the courts below. 7. The main and pivotal contention of the petitioner is that the account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant- accused cannot be expected to discharge an unduly high standard of proof. The Court further observed that 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. 25. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own.If however, the accused/drawer of a cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt and yet stops payment for bona fide reasons, the same cannot be put on a par with other variety of cases where the cheque has bounced on account of insufficiency of funds or where it exceeds the amount arranged to be paid from that account, since Section 138 cannot be applied in isolation ignoring Section 139 which envisages a right of rebuttal before an offence could be made out under Section 138 of the Act as the legislature already incorporates the expression unless the contrary is proved which means that the presumption of law shall stand and unless it is rebutted or disproved, the holder of a cheque shall be presumed to have received the cheque of the nature referred to in Section 138 of the NI Act, for the discharge of a debt or other liability. Hence, unless the contrary is proved, the presumption shall be made that the holder of a negotiable instrument is holder in due course. (Emphasis Supplied) 10. From the above proposition of law adumbrated by the Hon'ble Supreme Court what unequivocally follows that Section 138 and 139 of the Negotiable Instruments Act are intricately interconnected and for the offence u/s 138, the necessary ingredients u/s 139 also has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to receipt of a loan amount of ₹ 1,95,000/-, which has ended in dismissal. In the said judgment, the lower appellate court has adverted to the amounts involved and has held that the amount covered in the present case has been accounted for in the case as against the petitioner's husband as well. In the above circumstances, it is the submission of the learned counsel for the petitioner that once the amount has been taken into consideration in the case relating to the petitioner's husband, who has, after trial been acquitted of the offence, necessarily, the case against the petitioner also deserves to be dismissed for the simple reason that the amount, alleged to have been borrowed by the petitioner has been accounted for in the parallel case initiated against the petitioner's husband. 14. There is no dispute that a case u/s 138 of the Negotiable Instruments Act was pursued against the petitioner's husband, which ultimately ended in acquittal and the same has attained finality as no appeal/revision has been filed against the said order. That being the case, the amount, which is the subject matter of the present case, having been accounted for in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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