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TMI Blog2021 (6) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... d" and "complainant" respectively. 3. It is the case of the complainant that the accused had borrowed a sum of Rs. 6 lakhs from him on 05.01.2009 and on the same day, he had issued a post dated cheque No.297282 dated 09.03.2009 drawn at ICIC Bank (Ex.P1). Thereafter, when the said cheque was presented for collection by the complainant on 09.03.2009 in his S.B. Account No.1345 at Canara Bank, Gudalore Branch, Coimbatore, it was returned by a memo with an endorsement "insufficient funds"(Ex.P2) on 14.03.2009 following which, the complainant issued a statutory demand notice dated 28.03.2009 (Ex.P3) by registered post and it was served on the accused vide acknowledgement date 08.04.2009 (Ex.P4). However, the accused had sent a reply only on 04.06.2009 (Ex.P5) after the complainant had initiated prosecution in C.C.298 of 2011 before learned Judicial Magistrate, Fast Track Court, Magisterial Level-II, Coimbatore, for offence under Section 138 of the Negotiable Instrument Act. 4. On appearance, the accused was questioned under Section 251 Cr.P.C. and he denied the accusations and sought to be tried. The complainant examined himself as PW.1 and marked Exs.P1 to P5. 5. Thereafter, when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examining himself as DW1, let in evidence to show that he was not in the town on the date of alleged borrowal and issuance of cheque i.e. on 05.01.2009. Further, in order to prove that the complainant was not having financial capacity to lend such a huge amount of Rs. 6 lakhs, the accused had also examined the Manager of the complainant's Bank and proved that at no point of time the complainant was having more than Rs. 2,000/- in his account. Further, it is the admitted case of the complainant that he was having only one bank account and that part of the amounts were advanced/transferred through bank transactions only and in such circumstances, the accused by examining the bank Manager of the complainant and marking his statement of accounts, had rebutted the presumption to show that the complainant was not having financial capacity and the consideration had not passed and that the complainant had not paid the said sum of Rs. 6 lakhs as stated above and the cheque was not issued towards any legally enforceable debt, whereas the courts below have failed to take into consideration the cogent evidence let in by the petitioner/accused to rebut the presumption. 9.1. The learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraphs in 23 to 29 is extracted hereunder; 23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of 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 they rely. (iv) That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stioned on behalf of the Accused, the Accused being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs. 8 lakhs only. The High Court observed that though the complainant is retired employee, the Accused did not even suggest that pension is the only means for survival of the complainant. Following observations were made in Paragraph 16 of the judgment of the High Court: 16. Though the complainant is retired employee, the Accused did not even suggest that pension is the only means for survival of the complainant. Under these circumstances, the Trial Court's finding that the complainant failed to discharge his initial burden of proof of lending capacity is perverse. 26. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in examination-in-chief the complainant has not mentioned as to on which date, the loan of Rs. 6 lakhs was given to the Accused. It was during cross-examination, he gave the date as November, 2011. Under Section 118(b), a presumption shall be made as to date that every negotiable instrument was made or drawn on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on consideration of the evidence, which was led on behalf of the defence. This Court had occasion to consider the expression "perverse" in Gamini Bala Koteswara Rao and Ors. v. State of Andhra Pradesh through Secretary, MANU/SC/1669/2009 : (2009) 10 SCC 636, this Court held that although High Court can reappraise the evidence and conclusions drawn by the trial court but judgment of acquittal can be interfered with only judgment is against the weight of evidence. In Paragraph No. 14 following has been held: 14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr. Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found pervers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the revisional Court cannot re-appreciate the evidence like an Appellate Court, however, when there is wrong appreciation of facts and when the Courts below have not properly analysed the materials and evidence, the power of this Court to go into evidence has been preserved by Sections 397 and 401(1) of Cr.P.C. to satisfy itself as to the correctness, legality or proprietory of any finding. This Court carefully perused the evidence and materials on record. 12. The complainant in his evidence has deposed about running a tailoring shop and that he is known to the accused for about 15 years and that on 05.01.2009, he had given a loan of Rs. 6 lakhs to the accused for the business of the accused and on the same day, the accused had given a post dated cheque dated 09.03.2009 for the same amount. Thereafter, the cheque was presented for collection on 09.03.2009 and that it has been returned on 14.03.2009 stating as "insufficient funds". Thereafter, the complainant had sent a legal notice to the accused dated 28.03.2009 and it had been received by the accused on 08.04.2009. Though, the accused had not sent any reply immediately, he had sent a reply on 04.06.2009 denying the issua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant was not having the financial capacity to lend such a huge amount, he had examined the Manager of the complainant's bank and also marked the statement of accounts of the complainant relating to the period between 01.09.2008 to 13.04.2009 to prove that during the relevant period, he was not having more than Rs. 2,000/- at any point of time and thus, he could have not lent the said sum of Rs. 6 lakhs to the accused. 15. Admittedly, neither any oral nor any documentary evidences had been adduced by the complainant to prove that such a huge amount of Rs. 6 lakhs was paid to the accused. Though, the complainant had later stated that the amounts were arranged through his friends, none of his friends were examined to prove the same. Further, it is also highly doubtful that such a huge amount could have been lent to the accused on the strength a post dated cheque. The accused had probabilised his defence by preponderance of probability by letting evidence to prove that the complainant was not having financial capacity to pay/lend such a huge amount of Rs. 6 lakhs and that the cheque was not drawn for consideration and it was not issued for the discharge, in whole or in part, of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue. " 17. Applying the propositions of the law base ..... X X X X Extracts X X X X X X X X Extracts X X X X
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