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TMI Blog2008 (9) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing No. 486618 dated 6.8.2003 drawn on HDFC Bank Ltd., S-65, G.K.-I, New Delhi for ₹ 56,690/- from an account maintained by him in the name of M/s. Bake Town, of which he is the authorized signatory. The aforesaid cheque when presented for encashment was dishonoured due to Stop payment vide cheque returning memo dated 7.8.2003 and despite receipt of demand notice dated 5.9.2003 sent through registered post, the accused failed to pay the cheque amount and hence the complaint under Section 138, N.I. Act, 1881 was made against the accused. Based on the said facts and after taking into consideration the pre-summoning evidence, the concerned Magistrate took cognizance of the offence against respondent No. 1. On merits the applicant examined one witness, namely, Avdesh Singh who was cross-examined by Counsel for respondent No. 1. In his statement recorded under Section 313, Cr.P.C. respondent No. 1 stated that he had issued cheque in a sum of ₹ 56,690/- as advance payment for three air tickets, but got the same stopped as he had received only one ticket against one invoice. Counsel also stated that he was ready to make the payment against one air ticket issued against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport of his arguments Counsel for the applicant has placed reliance on the following judgments: 1. Goa Plast (P) Ltd. v. Chico Ursula D 'Soma (2004) BC 246 : 2004 (1) Crimes 81 (SC). 2. Hiten P. Dalal v. Bratindranath Banerjee 2001CriLJ4647 . 3. Suthendraraje @ Suthenthire Raja @ Santhan and Ors. v. State 1999CriLJ4587 . 3. Opposing the grant of special leave Mr. Chander M. Maini, Counsel appearing for respondent No. 1 vehemently contended that there is a very limited scope for the High Court to interfere with the acquittal order unless there are very strong reasons which can dislodge the findings arrived at by the Trial Court. Even in a case where two possible views can be found from the material on record, one in favour of the accused and the other against the accused, the High Court would not reverse the acquittal merely because it finds the other view more plausible or preferable, Counsel contended. Counsel further submitted that for proving guilt of the accused, the prosecution has to prove the case beyond all reasonable doubt and the same standard of proof is not required for the defence. The contention of the Counsel for the respondent is that it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque receiving the consideration of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118(a) and 139 are rebuttable in nature. Having regard to the definition of terms 'proved' and 'disproved' as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-a-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision. 7. In this regard, in K. Prakashan v. P.K. Surenderan (2008)1SCC258 , the Hon'ble Apex Court observed as under: 18. The said legal principle has been reiterated by this Court in Kamala S. v. Vidhyadharan M.J. wherein it was held: (SCC p. 270, paras 15-17)- 15. The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case. 16. The nature and extent of such presumption came up for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopting the test of probabilities, so must a criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him. 47. In V.D. Jhingan v. State of Uttar Pradesh it was stated (SCR p. 739 H)- It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. (See also State of Maharashtra v. Wasudeo Ramchandra Kaidalwar.) 48. In Kali Ram v. State of H.P. Khanna, J., speaking for the three-Judge Bench, held (SCC p. 819, para 23)- One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the Courts cannot record a finding of the guilt of the accused. There are certain cases i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Airways, Ex. CW1/D1 produced by PW1 during his deposition, according to which Ms. Rica Goldsmith used one ticket is also of no help to the complainant as the said document is only a photocopy and original was not brought before the Court, also nobody was examined from Jet Airways to prove authenticity of the said document. The invoices CW1/C and CW1/D also raise suspicion as these invoices are photocopies and the particulars pertaining to the addresses where filled in later on in a different ink. Also, nobody was examined by the complainant to prove these invoices. Another thing which is worth noticing is that allegedly, these invoices were issued on the same date but the invoice exhibited as CW1/D bears 4.9.2003 as the date on it, whereas other invoices bore date of 4.8.2003. Furthermore, the genuineness of these invoices is in dispute as the relevant book from which the loose sheets of these invoices were taken was not brought on record. From the above discussion, the position of law which emerges is that once the holder of the cheque received the cheque of the nature mentioned in Section 138 of the N.I. Act, the presumption under Section 139 would arise that it is for the disch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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