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TMI Blog2007 (12) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... he offence punishable under Section 138 of the Negotiable Instruments Act, (for short 'the Act') 3. Though the cheques and the evidence led by the parties in these two cases are separate, the parties and the facts so also the circumstances against which the cheques of ₹ 3 Lacs and ₹ 5 Lacs were issued, are similar and hence, these two appeals are being disposed of by this common judgment. The case set up by the complainant is that the accused had issued these two cheques, dated 28-2-1997 and 11-1-1997, in due course of business towards the debt due and payable to him. Both these cheques were presented by the complainant in his Bank. Both the cheques were bounced and were returned with an endorsement 'not arranged for' and 'payments stopped by the drawer', on 25-4-97 and 9-4-97 respectively. Accordingly, legal notices were issued by the complainant on 27-4-97 and 17-4-97 calling upon the accused to pay the amount of the cheques within a period of 15 days from the date of receipt of the notice. Notices were received by the accused on 13-5-97 and 23-4-97 respectively. The accused did not make the payment of the cheques amount and, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the discharge of any debt or liability. He submitted that the complainant was, therefore, not required to lead any evidence. He then submitted, it is true that the complainant in his cross-examination has made lot of confusion and has also made some contradictory statements, however, that does not have any material bearing on the issue involved in this case, inasmuch as, it is the specific case of the accused that he had no transaction of whatsoever nature with the complainant and that he never entered into an agreement of any nature with Sushila Tendulkar. The impugned judgment and order of Judicial Magistrate acquitting the accused suffers from fundamental error. The Magistrate has wrongly assumed that it is the case of the complainant that the cheque was issued in view of the agreement which the accused had entered into with Sushila Tendulkar. He then submitted that the manner in which the learned Magistrate has proceeded to assess the evidence, it is apparent that he misdirected himself in appreciating that there was a presumption drawn from Section 139 of the Act by virtue of which the consideration had to be presumed to have flown from the complainant to the accused which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions in the cross-examination of the complainant. From the Cross-examination it is clear that the complainant is not honest and completely unreliable and his credibility has been completely destroyed. He submitted that the complainant has not been able to frame his case and the burden was shifted to him as the accused has rebutted the statutory presumption. My attention was drawn to the extensive cross-examination of the complainant and he submitted that it is full of inconsistencies, contradictions and discrepancies which are sufficient to hold that the burden which was on the accused to prove the presumption under Sections 138 and 139 of the Act, he has successfully discharged. The evidence on record clearly shows that the complainant had absolutely no source of income at the relevant time when he allegedly paid the amount of ₹ 8 Lacs in cash in two installments, to the accused. He is not sure as to whether he borrowed that amount from his aunt Sushi la Tendulkar or from the friends and he paid that amount on behalf of his aunt Sushila Tendulkar as her Power of Attorney or on his own behalf. He did make reference to an agreement between Sushila Tendulkar and the accused an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t could be relied upon by the accused. What is needed is to raise a probable defence or that the consideration does not exist. The Supreme Court in the very same judgment after referring paragraph 22 and 23 in Hiten P Dalai's case, in paragraph No. 42 has observed that the Court, however, in the fact situation obtaining therein (in Hiten P. Dalal's case) was not required to go into the question as to whether an accused can discharge the onus placed on him even from the materials brought on record by the complainant himself. Evidently, in law he is entitled to do so. The learned Single Judge of this Court in Shanaz De'Souza's case after considering the very same judgment in Hiten P. Dalai, has observed that although, the accused did not lead any evidence in rebuttal it does not mean that the accused could not take advantage of the cross-examination of the complainant in rebutting the presumption. 10. In Santan Finance and Real Estate v. Devappa 2005(1) G L R 390 this Court has observed that there can no dispute with the presumption available under Section 139 of the Act in favour of the complainant. However, that presumption could not be rebutted only by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. Similarly in Bharat Barrel and Drum Manufacturing Company v. Amin Chand Payrelal [1999]1SCR704 the Division Bench of the Supreme Court while considering Section 118(a) of the Act observed that the accused can prove the non-existence of a consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of negotiable instrument. The burden upon the accused of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. It is true that in case, where the respondent failed to discharge the initial onus of proof by showing the non-existence of consideration, the complainant would invaria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he onus will shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove will disentitle him to the grant of relief on the basis of negotiable instrument. It is true that in case, where the respondent failed to discharge the initial onus of proof by showing the non-existence of consideration, the complainant would invariably be held entitle to the benefit of presumption arising under Section 118(a) in his favour. However, the Court may not insist upon the accused to disprove existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, require to be seen with doubt. The standard of proof in such cases evidently is preponderance of the 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. The onus, contemplated under Sections 118 and 139 of the Act, upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. 16. I will, therefore, have to consider whether in the case in hand, the accused p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said premises and carrying on the business along with the accused. It is the very same amount for which the accused had allegedly issued the cheques in question. This amount was paid in cash. Thus, the complainant has claimed that he gave the money to the accused for obtaining a right to sit in the office premises of the accused and carry out the business with him. He has further stated that the money was given to the accused as the accused was his friend and also with an intention of carrying on the business there. He then claimed that he started Real Estate Business and he used to help the people in buying and selling the property and also that he was getting money from land transactions taking place. He also mentions about several buildings and properties at Goa and Mumbai. This claim of the complainant is consistent with the defence propounded by the accused that he sought complainant's help for purchasing the property in Goa. 18. Complainant's evidence further show that although he is claiming that he had paid a total sum of ₹ 8 Lacs, for which two cheques in question in the two appeals were given to him, he has not been able to state as to when the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-examination he stated that he does not remember whether there was any such agreement between the accused and Sushila Tendulkar and that he also does not remember whether there was Power of Attorney issued in his favour in 1997. However, at one stage he has categorically stated that the amount of ₹ 8 Lacs, paid to the accused in two installments, was paid by the complainant as the Power of Attorney of Sushila Tendulkar and it was her amount. Then in further cross-examination he states that it was his money and he had raised it by taking loans and by way of charity. He has then stated that he did not know if the accused was owing any money to Sushila Tendulkar or that he had paid any monies on behalf of Sushila Tendulkar to the accused. He also states that he did not remember whether the agreement had any nexus with the cheques in question and who were the witnesses to the said agreement. 20. The complainant also was not able to disclose the source of such a large amount of ₹ 8 Lacs in the case and he has at various times claimed that the money belonged to his aunt and that she had given it to the accused and then he has claimed that he had taken this amount from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the complainant. Thus, it can be seen that the complainant has proved to be lying time and again and he has been giving contradictory answers which has not only created doubt about his case but, in my opinion, is also sufficient to rebut the presumptions against the accused. 22. The complainant has not been able to frame his case. He is not clear on whose behalf the present complaints were filed. All throughout, he is inconsistent. He has changed his version from time to time. He is not sure as to when and on whose behalf the monies were paid ? how he raised the said amount? whether Sushila Tendulkar alone paid this amount to him to pay it to the accused or his friends and well wishers gave that amount ? and whether they gave it as loan or charity ? If what he has stated in his evidence, that he had paid the amount of ₹ 8 Lacs to obtain a right to sit in the office and that he has been using it since 1993-94, is true, why should the accused pay back the said amount by two cheques. He is not sure of his own case. He does not state that he pays the rent or compensation to the accused for using the office. He has contradicted his own statements from time to time. The entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unded by the accused. As a matter of fact the admissions and contradictions in the evidence of the complainant are sufficient to hold that the accused has not only probabilised his defence but proved non-existence of a consideration through the complainant's evidence. 25. The judgment of the Supreme Court in Hiten Dalai's case (supra) in fact situation obtained therein was not required to go into the question as to whether the accused can discharge the onus placed on him even from the materials brought on record by the complainant himself and in view thereof it was observed that the accused must adduce evidence before the Court in support of the defence to make the Court believe the defence to exist or consider its existence to be reasonably probable. This does not disentitle, as observed by the Supreme Court in M. S. Narayana Menon's case (supra), the accused in law to rebut the presumption either by leading his evidence or bringing the facts on record in the cross-examination of the complainant. In the present case the complainant even could not frame his case properly. His cross-examination coupled with the testimony of the accused is sufficient to hold that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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