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TMI Blog2021 (12) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... rding compensation and unless there exist special circumstances, the courts should uniformly levy fine up to twice the cheque amount along with simple interest @ 9% p.a. - when a cheque is drawn out and is relied upon by the drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities. On perusal of Section 138 NI Act, it is indicated that the sum and substance of the defence is that the documents and cheque had been obtained by the respondent on 20.01.2004 by threatening the appellant. In that regard, the circumstances thereto were referred and it has been categorically stated that the appellant had filed a complaint, pursuant to which a case was registered against the respondent for the offence punishable under Sections 365, 342, 323 and 506 of IPC. This makes it relevant for us to take note of the aspect that was considered in the above noted criminal complaint filed by the appellant. The defence sought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments Act, 1881 ( NI Act for short). The complaint was filed on 17.03.2004 before the II Additional Civil Judge (Junior Division) and JMFC, Udupi in P.C. No. 213 of 2004 which was thereafter registered as CC No. 3207 of 2004. It was the case of the respondent that the appellant carried on the business of money lending and land brokerage for which he used to take loan from the respondent as and when required. In one such transaction, as per the case put forth by the respondent is that the appellant borrowed a sum of ₹ 3,75,000/( Rupees three lakh seventy five thousand) from the respondent on 12.06.2003 and executed an on demand promissory note and a receipt in acknowledgment. The appellant also issued a post dated cheque bearing No. 062589 for ₹ 4,00,000/( Rupees four lakhs) dated 12.12.2003, which included interest for six months. The said cheque was drawn on Corporation Bank, Ambalpady Branch, Udupi. 3. As per the case of the respondent, when the cheque was presented for realisation on 17.02.2004, the same was dishonoured by the bank for insufficient funds in the account of the appellant. Having got issued a legal notice dated 18.02.2004 and on the demand for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at had arisen on the cheque being issued and such presumption not being rebutted for the reasons indicated by it, has allowed the appeal and convicted the appellant which has resulted in this appeal. 6. We have heard Mr. S.N. Bhat, learned counsel for the appellant, Mr. Ranji Thomas, learned senior counsel with Mr. V.N. Raghupathy, learned counsel for the respondent and perused the appeal papers. 7. From the rival contentions urged before us and the facts which emerge from the records, it is clear that cheque bearing No.062589 dated 12.12.2003 drawn on Corporation Bank, Ambalpady Branch, Udupi for the sum of ₹ 4,00,000/( Rupees four lakh), which is the subject matter of the complaint in CC No.3207 of 2004, has been brought on record. However, in the light of the defence that was raised, the point which arises for consideration is as to whether the said cheque was in fact issued by the appellant on 12.06.2003 by postdating it to 12.12.2003 and making it payable on or after that date, towards discharge of a legal debt. 8. The legal aspect relating to the presumption arising in law when a cheque is issued, is to be noted at the threshold. No doubt, as noted by the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. 32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. 33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be evidence even for the purpose of drawing presumption under another. Applying the abovesaid principles to the case on hand, we find that the judgment of the trial court in having drawn the conclusions to the effect that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderance of probability . In the absence of any other relevant material, it appears to us that the High Court did not err in discarding the appellants' defence and upholding the onus imposed upon them in terms of Section 118 and Section 139 of NIA. 19. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled principles that the object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal liability for dishonour of cheque as well as civil liability for realisation of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the courts should uniformly levy fine up to twice the cheque amount along with simple interest @ 9% p.a. 10. It would also be apposite to take note of a decision in Triyambak S. Hegde vs. Sripad in Criminal Appeal Nos.849 - 850 of 2011 dated 23.09.2021 wherein it was observed as hereunder: 12. Insofar as the payment of the amount by the appellant in the context of the cheque having been signed by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 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. 25.4. 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. 25.5. It is not necessary for the accused to come in the witness box to support his defence. 11. The position of law as noted above makes it crystal clear that when a cheque is drawn out and is relied upon by the drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities. 12. In the backdrop of the legal position being enunciated, the facts herein are to be noted. It was the case of the respondent herein that the appellant had borrowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still be considered as a probable defence. The defence put forth by the appellant in the instant case i.e., Section 138 NI Act proceedings in C.C. No.3207 of 2004 as referred to by the learned Magistrate in the course of the judgment, reads as hereunder: It is further alleged that during the year 2003, in order to clear off the dues to some others, the accused has decided to sell the above referred property and the accused expressed his desire to sell his property before the complainant. At that time, the complainant proposed to purchase the said property from the accused for ₹ 3,00,000/, but the accused has refused to sell the said property to the complainant for the above said amount of ₹ 3,00,000/- since, the property is worth ₹ 7 lakh. In view of the proposal made by the complainant for small amount, the accused is declined to sell his property to him. Thereafter, the accused himself began to search the customers for purchasing the said property at that time the complainant mislead the proposed purchasers who are ready to purchase the said property representing that the said property was pledged by the accused for the purpose of loan which was obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove said defence, the accused humbly prayed for acquittal. 15. A close perusal of the above indicates that the sum and substance of the defence is that the documents and cheque had been obtained by the respondent on 20.01.2004 by threatening the appellant. In that regard, the circumstances thereto were referred and it has been categorically stated that the appellant had filed a complaint, pursuant to which a case was registered against the respondent for the offence punishable under Sections 365, 342, 323 and 506 of IPC. This makes it relevant for us to take note of the aspect that was considered in the above noted criminal complaint filed by the appellant. The said case was registered as C.C. No.6318 of 2004. In that case, the learned Magistrate, on taking note of the allegation made by the appellant, had raised the points for consideration and the findings were summarised. They are as follows: 5. Heard both sides and perused the record. Now, the points that arise for the due consideration of this Court are as follows: (1) Whether the prosecution proves beyond all reasonable doubts that on 20.1.2004 at about 11 p.m. within the jurisdiction of Udupi Town PS at Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y by way of improvement in respect of the same cause of action. Therefore, the defence sought to be put forth relating to the cheque and other documents having been obtained by force, cannot be accepted as a probable defence when the respondent successfully discharged the initial burden cast on him of establishing that the cheque signed by the appellant was issued in his favour toward discharge of a legally recoverable amount. The fact that the appellant has admitted about an earlier transaction where according to him, he had borrowed the amount and repaid the same in the year 1995, would indicate that the appellant and the respondent had entered into financial transactions earlier as well and another transaction was probable between the parties who were known to each other. In the light of the other circumstances established by the respondent, it would indicate that the respondent had discharged the burden of proving that the transaction had actually taken place. To rebut the same, the very case put forth by the appellant cannot be accepted as probable defence since the said aspect had already been considered in a separate proceeding (C.C.No.6318/2004) and the respondent had been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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