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TMI Blog2010 (2) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... g No. 13840 for ₹ 10,00,000/- drawn on UTI Bank Vasco-Da-Gama and the cheques bearing Nos. 13838 and 13839 for ₹ 15,00,000/- and ₹ 10,00,000/- drawn on UTI Bank, Vasco-Da-Gama. The said cheques have been dishonoured for insufficiency of funds giving rise to the filing of the complaints under section 138 of the Negotiable Instrument Act (for short the Act). 3. The parties would be referred to as per their status in the trial Court. The facts in Criminal Appeal No. 17 of 2009 would be referred to for the sake of convenience. 4. The appellant herein is the original complainant who has filed the said two complaints. It is the case of the complainant that the accused was in urgent need of money for his business for which he had approached the complainant upon which the complainant and one Vassudev Surya Parab had allegedly advanced to the accused various sums as follows :- 1. ₹ 5,00,000/- on 12.5.2005 2. ₹ 5,00,000/- on 27.5.2005 3. ₹ 5,00,000/- on 10.6.2005 4. ₹ 3,00,000/- on 10.7.2005 5. ₹ 3,00,000/- on 14.8.2005 6. ₹ 3,00,000/- on 13.9.2005 7. ₹ 3,00,000/- on 9.10.2005 and 8. ₹ 8,00,000/- advanced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, in default of payment of the compensation the accused to undergo six months simple imprisonment. 7. Aggrieved by the conviction by the J.M.F.C., by her judgment and order dated 8.5.2008, the accused filed criminal appeals being Criminal Appeal No. 34 of 2008 and Criminal Appeal No. 35 of 2008. The said criminal appeals were allowed by the learned Additional Sessions Judge-3, South Goa, Margao, and resultantly the conviction of the accused was set aside. The lower Appellate Court came to a conclusion that the accused on the basis of the material on record and relying upon the circumstances has successfully rebutted the presumption under section 139 of the said Act and thereby probabilised his defence and since the complainant thereafter has not discharged his burden which shifted on him to prove the existence of a debt or liability of the accused, the accused was entitled to be acquitted. The lower Appellate Court, therefore, as mentioned hereinabove set aside the conviction of the accused by the learned J.M.F.C., in both the complaints. The aforesaid judgment and orders passed by the lower Appellate Court i.e. Additional Sessions Judge-3, South Goa, Margao, are the subject-m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibit 30 colly which are produced only at the time of the cross-examination of the complainant, has convicted the accused without evaluating and appreciating the evidence which had come on record in its proper perspective. The learned Counsel submitted that in the absence of such evaluation and appreciation of the evidence by the trial Court, the lower Appellate Court was right in setting aside the conviction as the lower Appellate Court has gone threadbare into the evidence and has recorded its findings only thereafter. The learned Counsel submitted that the complainant has failed to prove by evidence that the said amount of ₹ 35,00,000/- was advanced to the accused. The learned Counsel further submitted that the lower Appellate Court was right in drawing an adverse inference against the complainant for the non production of income tax returns. The learned Counsel lastly submitted that the view taken by the lower Appellate Court in the context of the evidence which is on record cannot be said to be perverse or improbable and therefore no interference was called for with the orders of acquittal. 10. Before proceeding further it would be necessary to see the averments made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na Janardhan Bhat Vs. Dattatraya G. Hegde)1, on the point of presumption under section 139 of the Act. Paragraphs 29, 30, 31, 32, 33, 34, 35, 36 and 41 of the said report are material and are reproduced herein under : 29. Section 138 of the Act has three ingredients viz.: (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. 30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a Court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. 31. The courts below, as noticed hereinbefore, proceeded on the basis that section 139 raises a presumption in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused in preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only form 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 nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. 36. In (M.S. Narayana Menon Vs. State of Kerala)3, 2006 B.C.I. (soft) 65(S.C.) : 2006 DGLS (soft) 383 : 2006 DGLS(Cri.) soft 793 : 2006(6) S.C.C. 39 it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relies. The accused can raise a probable defence from the material brought on record by him, so also by the complainant himself. Though it is obligatory on the Court to raise presumption contemplated under sections 118, 238 and 139 in every case. Here the factual basis for raising of the presumption has been established, what is needed for the accused is to raise a probable defence or that the consideration. 12. In so far as the judgment of the Apex Court is concerned, the said judgment lays down a proposition that the section 139 raises a presumption that the cheques have been issued for the discharge of a debt or liability and that the existence of legally enforceable debt is not a matter of presumption under section 139 of the said Act. The said judgment further lays down that whereas the prosecution must prove the guilt of the accused beyond reasonable doubt, the standard of proof so as to prove the defence on the part of an accused is preponderance of probabilities. The inference of preponderance of probabilities can be drawn not only from the material brought on record, but also by reference to the circumstances upon which he relies. The rebuttal by the accused does not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma, Goa, and that Vassudev S. Parab is a resident of Madapai, Marcel Goa. The register of partnership and the Deed of Partnership disclose that the principal place of business of the firm was Radhakrishnan Niwas, New Vadem, Vasco-De-Gama i.e. the residential address of the complainant. It is undisputed that the account of the firm was opened in the UTI Bank at Vasco branch. The aforesaid evidence therefore demonstrates that the accused, complainant and the said Vassudev Parab were the partners in the said firm of M/s. Kulmaya Mineral and Transport Contractors and that the complainant was to look after the accounts and paper work of the said firm since the accused was illiterate and therefore could not be expected to personally look after the accounts or do other paper work. These facts are conspicuously absent in the complaints. It would be also pertinent to note that in terms of Clause 11 of the Partnership Deed, the partners were entitled to raise funds by way of loans from banks, financial institutions, themselves, relatives and friends. 14. The said clause therefore indicates that the firm was entitled to raise funds by way of loans from banks, financial institutions, from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaints were given to the accused and that he had personally given ₹ 8,00,000/- to the accused. What is significant in so far as the evidence of PW-2 Vassudev Parab is concerned that he also admits that he knew the accused only from the year 2005 and that he had no idea as to what business the accused was conducting and one of his friends had introduced him to the accused at Sankhlim and that thereafter he introduced the complainant to the accused. The upshot of the said evidence is that both the complainant and the said Vassudev Parab did not know the accused prior to 11.5.2005. They also did not know his business. It is therefore impossible to believe that either the complainant or said Vassudev Parab would advance such a huge amount of ₹ 5,00,000/- on the next day i.e. on 12.5.2005 to a person who was almost a stranger to them and have advanced various other sums subsequent to 12.5.2005. The most unusual thing further is that the said Vassudev Parab had advanced ₹ 8,00,000/- to the accused on the guarantee of the complainant. When both the complainant and the said Vassudev Parab came in contact with the accused only from 11.5.2005 and when they hardly knew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avin by way of an advance, the said Shri Pravin has not been examined nor any document evidencing such borrowing from Shri Pravin has been produced. There is therefore no evidence as regards the paying capacity of the said Shri Pravin or evidence about borrowing from the said Shri Pravin and, therefore, alleged borrowing from the said Shri Pravin is not proved. There is also absolutely no evidence on record adduced by the complainant as regards how he has raised the said amount of ₹ 35,00,000/-. It would also be relevant to note that it is the case of the complainant that though ₹ 8,00,000/- was advanced by Vassudev Parab, the three cheques allegedly issued by the accused for the amount of ₹ 35,00,000/- were all in the name of the complainant. If part of the amount of ₹ 35,00,000/- was advanced by the said Vassudev Parab, why all the cheques were issued in the name of the complainant is difficult to understand. Another thing which is required to be noted is that it is the case of the complainant that the accused had agreed to pay the said amount of ₹ 35,00,000/- with interest. The cheques however allegedly issued by the accused are for the principal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances as mentioned above, in my view, the accused has rebutted the presumption under section 139 of the said Act and has probabilised his defence. The accused in my view has successfully probabilised his defence by showing the non existence of liability and consideration. Whereas the complainant has failed to prove by cogent evidence, firstly as to how he raised ₹ 35,00,000/- and secondly the lending of the said amount to the accused. 20. The lower Appellate Court on an evaluation and re-appreciation of the evidence has come to a conclusion that the trial Court erred in convicting the accused by merely recording the conclusion without evaluating or weighing the evidence as also without dealing with the circumstances on which the accused relied to establish his defence. The lower Appellate Court in its appellate jurisdiction was entitled to evaluate the evidence and record its findings on the aforesaid aspects. Considering the evidence on record, in my view, the findings of the lower Appellate Court on an appreciation of evidence cannot be said to be perverse or view taken by the lower Appellate Court cannot be said to be a view which is impossible to be taken on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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