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TMI Blog2021 (8) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... that he has again advanced hand loan of ₹ 2,50,000/- to the accused. He has not given any explanation as to when this amount of ₹ 1,50,000/- was advanced. Admittedly, if the version of the complainant is taken that repayment of ₹ 1,50,000/- pertaining to earlier hand loan, he would have referred it in the complaint and in April 2009, when there was due of ₹ 1,50,000/- in respect of earlier hand loan, he would not have ventured to advance further hand loan of ₹ 2,50,000/-. The accused need not rebut the presumption on the principles of beyond all reasonable doubt, but he can rebut the presumption only on the basis of preponderance of probabilities. Looking into the rival contentions and considering the evidence of P.Ws.1 and 2, it is evident that their evidence is not trustworthy and the defence of the accused is more probable rather than the claim made by the complainant. Hence, the presumption under Section 139 of N.I.Act is rebutted by the accused. Then again burden shifts on the complainant to establish the existence of legally enforceable debt, but that is not forthcoming. There is no doubt that initially there is a statutory presumption an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly, the complainant has presented the cheque through his banker Karnataka Vikas Grameena Bank, APMC Branch, Dharwad. But the said cheque came to be dishonoured for 'insufficient funds' on 18.07.2009. As per the request of the accused, he further presented the cheque on 27.08.2009 and again it was returned for 'insufficient funds'. The same was brought to the notice of the accused, but the accused did not take any steps and neglected to pay the amount. Thereafter, the complainant issued legal notice on 02.09.2009 calling upon the accused to pay the cheque amount. In spite of receipt of notice, the accused neither replied nor complied the same. Hence, the complainant has lodged a private complaint under Section 200 of Cr.P.C. 4. Thereafter, on the basis of the sworn statement and documents produced by the complainant, the learned Magistrate found that there is sufficient material to proceed against the accused and hence, he has taken cognizance and issued process. The accused has appeared and was enlarged on bail. Thereafter, the plea under Section 138 of N.I.Act was recorded and accused pleaded not guilty. The complainant got examined himself as P.W.1 and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd presumption is also in his favour and as such, he would contend that the judgment of acquittal passed by the trial court suffers from infirmities and it is against the settled principles of law. Hence, he would seek for interference by this court and prays for allowing the appeal by setting aside the impugned judgment of the trial court. 8. Per contra, learned counsel for the respondent/accused would contend that the complainant is also used to undertake the work of manufacturing furniture and accused has entrusted the furniture work to him. Initially, it was for ₹ 2,50,000/- and such, he has issued the cheque. He would contend that subsequently D.W.2 who has also got work executed from the complainant revealed that the work is only worth ₹ 1,50,000/-. Hence, the said amount was independently paid with a request to return the cheque of ₹ 2,50,000/-. But the complainant after having encashed ₹ 1,50,000/- misused the earlier cheque. He would also contend that accused was financially sound and there was no need for him to take any loan from the complainant. He would further contend that the complainant has not even mentioned the date of availing loan and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant. Exs.P8 and 9 are income tax returns and Ex.P10 is the copy of the civil contractor licence. Ex.D1 is the statement of account belonging to the accused and there is no serious dispute of the fact that the cheque under Ex.P1 was returned for 'insufficient funds'. It is also undisputed fact that the cheque was signed by the accused. Hence, the initial presumption is in favour of the accused under Section 139 of N.I.Act, but however, this statutory presumption is rebuttable presumption. For rebutting the said presumption, the accused need not enter into the witness box and he can rebut the presumption even on the basis of the available material placed on record. 11. A perusal of the evidence of complainant P.W.1, it is evident that he has all along simply asserted that the hand loan was advanced for ₹ 2,50,000/- in the month of April, 2009. The complainant has not disclosed the date of advancement of loan. In the year 2009, ₹ 2,50,000/- is not a small amount and it cannot be presumed that complainant had forgotten the date. Further, P.W.1 has not denied the fact that he was entrusted by accused for execution of furniture work of his house situated in Sapta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque dated 24.07.2009. Hence, it is evident that P.W.2 is giving false evidence only in order to assist the complainant. He does not know any transaction and his own examination-in-chief clearly exposes him as he claimed that hand loan of ₹ 2,50,000/- was advanced as earlier hand loan was repaid which was not the case of the complainant and from records, it is also evident that payment of ₹ 1,50,000/- was subsequent. 13. Learned counsel for the complainant placed reliance Ex.P7(a) wherein it is evident that complainant has withdrawn a sum of ₹ 2,52,000/- on 16.04.2009 from his account. It is to be noted here that the complainant has no where asserted the specific date of advancement of loan. Further, according to him, after withdrawing ₹ 2,52,000/-, a sum of ₹ 2,50,000/- was paid as hand loan, but when he paid it is not forthcoming. This is first time asserted in the arguments. Even if this fact is taken into consideration, then what prevented him by issuing cheque in the name of the accused itself is not at all forthcoming and there was no need for him to withdraw and hand over cash to the accused. He could have directly issued a cheque in the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly an improvement when the accused has taken a defence. Apart from that, under the provisions of Income Tax Act, such a transaction should be by way of cheque, but that was also not followed. Even in the income tax returns produced by the complainant, there is no reference of both these transactions of ₹ 2,50,000/- or ₹ 1,50,000/- in respect of hand loan as claimed by the complainant. P.W.1 has also admitted that there is no reference of these transactions in his income tax returns. When the complainant is a contractor, he should have mentioned the said aspect in his income tax returns, but that was not done. Hence, the contention of the complainant that ₹ 2,50,000/- was advanced to the accused by way of hand loan is not acceptable. On the contrary, the defence of the accused that, it was issued towards furniture work and since furniture work was worth ₹ 1,50,000/- only, the same was repaid by subsequent cheque appears to be more possible. The accused need not rebut the presumption on the principles of beyond all reasonable doubt, but he can rebut the presumption only on the basis of preponderance of probabilities. Looking into the rival contentions and cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Apex Court held as follows: Debt, Financial and Monetary Laws - Negotiable Instruments Act, 1881 0 Ss.118, 138 and 139 - Drawing of presumption under, and how said presumption can be rebutted - Standard of proof - While prosecution must establish its case beyond reasonable doubt, accused to prove a defence must only meet standard of preponderance of probabilities - Principles summarised. 18. The Hon'ble Apex Court has clarified that the prosecution is required to establish its case beyond all reasonable doubt, but accused to prove his defence only by meeting the standard of preponderance of probabilities. Further, it is held that, if the accused has lead a probable defence, then burden would be on the complainant to establish the same. 19. Considering all these facts and circumstances of the case, it is evident that the complainant has failed to establish the existence of legally enforceable debt and accused rebutted the initial statutory presumption available in favour of the complainant. The trial court after marshalling oral and documentary evidence has come to a proper conclusion regarding complainant having failed to discharge regarding advancing ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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