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TMI Blog2012 (1) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... of the first respondent borrowed an amount of ₹ 4 lakhs from him under a promissory note, the first respondent in discharge of the said loan, borrowed by her husband issued a cheque on 30.10.2003, the said cheque was presented by the appellant in the bank for collection on 18.11.2003 and it was dishonoured on the ground of insufficient funds in the account of the first respondent. Thereafter, the appellant issued notice under Section 138 of the Negotiable Instruments Act calling upon the first respondent to pay the cheque amount, but the first respondent neither paid the amount nor did she give any reply. The appellant then filed a case under Section 138 of the Act. 4. In the course of the trial before the learned Magistrate, the appellant/complainant examined himself as PW-T and examined the Branch Manager of State Bank of Hyderabad, Tandur Branch as PW-2 and marked Exs:P-1 to P-7. The first respondent/accused Smt. P. Anjalibai examined herself as DW-1 and marked Exs:D-1 and D-2. The learned trial Court held that the appellant tailed to discharge his initial burden as to the existence of legally enforceable debt or liability and also that the first respondent could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant from her in connection with some other loan transaction which is for lesser amount. 8. In view of specific denial made by the first respondent about borrowing the amount of ₹ 4 lakhs by her husband under a promissory note and that the appellant obtained a blank cheque from her in connection with some other loan transaction, I am of the view that it is obligatory on the part of the appellant to produce the promissory note and examine the attestors of the said promissory note whose names he had specifically mentioned in the complaint-petition. But, he did not do so. There was no explanation from him as to why he failed to produce the promissory note under which the husband of the first respondent allegedly borrowed an amount of ₹ 4 lakhs. He also did not file any books of accounts or being an income tax assessee any of the returns filed before the income tax authorities to show the existence of the debt. DW-1 in her Ex.D-2 notice issued to the appellant specifically alleged that the appellant obtained blank cheque and demanded him to return the blank cheque. The learned trial Court also found that there is a clear variation in the handwriting including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in every case. The obligation on the prosecution may be discharged with the help of presumption of law or fact unless the accused adduces evidence showing the reasonable possibility of non-existence of the presumed fact. (2) ICDS LTD. V. BEENA SHABEER AND ANOTHER MANU/SC/0669/2002 : (2002) 6 SCC 426 wherein it is held by the Supreme Court that the cheque issued by the guarantor towards payment of dues outstanding against the principal debtor is maintainable. (3) K.N. BEENA v. MUNIYAPPAN AND ANOTHER AIR 2001 SC 2895 wherein the Supreme Court has laid down that the burden of proving that cheque had not been issued for any debt or liability on the accused, denial of averments in reply by the accused are not sufficient to shift the burden of proof on to the complainant, the accused has to prove in trial by leading cogent evidence that there was no debt or liability and setting aside the conviction on the basis of some formal evidence led by the accused is not proper. 12. Relying on the above cited judgments, the learned counsel appearing for the appellant contended that since there is no positive evidence let in by the first respondent to establish that the cheque was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional right to maintain silence. The question as to whether the presumption stood rebutted or not, must therefore be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. 15. From the ratio laid down by the Supreme Court in the two judgments above referred, it is therefore obvious that a presumption which has to be raised by Courts, as required under Section 139 of the Act in favour of the complainant need not be rebutted by the accused by adducing any positive evidence. It is enough on his part to show the circumstances in his favour from the material available on record and the standard of proof required is that of the preponderance of probabilities. Therefore, the contention advanced on behalf of the complainant that there is no positive evidence adduced by the first respondent/accused to disprove the case of the complainant has no foundation in law. In the instant case, the first respondent/accused came up with a specific case that her husband never borrowed an amount of ₹ 4 lakhs under a promissory note from the appellant. Whereas, the contention of the appellant is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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