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TMI Blog2022 (1) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... rance of probabilities available in favour of the petitioner/accused, from the short falling evidence of the complainant, this case is deemed fit to be interference - the Criminal Revision Case is allowed. - Crl.R.C.No.414 of 2016 And Crl.M.P.No.3415 of 2016 - - - Dated:- 24-11-2021 - Honourable Ms. Justice R.N.Manjula For the Petitioner : Mr.S.Ashok Kumar for Mr.P.Palaninathan For the Respondent : Mr.R.Machavarthan, Amicus Curiae ORDER This Criminal Revision Case has been preferred challenging the judgment of the learned II Additional Sessions Judge, Pondicherry dated 18.01.2014 made in C.A.No.40 of 2014. 2. This case has arisen out of a private complaint filed by the respondent/complainant on the allegations that the petitioner borrowed a sum of ₹ 5,00,000/- on 13.11.2006, another sum of ₹ 5,00,000/- on 09.01.2007, ₹ 4,00,000/- on 04.01.2007 and ₹ 5,00,000/- on 09.01.2007, totally ₹ 19,00,000/- for his business purpose. After repaying a part amount, he had issued two cheques dated 20.01.2007 and 05.02.2007 for the sum of ₹ 6,90,000/- and ₹ 8,99,000/- respectively towards discharging the loan amount. The cheques w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.P.C., and 357(3) Cr.P.C., by the learned II Additional Sessions Judge basing on the materials available on record is fair and proper? 8. The main ground on which the petitioner has challenged the judgment of the Courts below is that the respondent/complainant did not have any means to lend ₹ 19,00,000/- to the accused and that too without getting any proper security and other documents. The complainant himself admitted that he is working in Hindustan Unilever Company as an operator, his monthly salary ₹ 13,000/-. In the evidence of PW.1 (complainant) it is stated that the accused was known to him. The accused is said to be running a lorry transport, Tea shop, Xerox shop and Courier Agency. The loan amount of ₹ 19,00,000/- was given within a short period of 40 days. It is not the contention of PW.1, that he had the entire sum of ₹ 19,00,000/- in his hands in order to lend it to the accused. His categorical submission is that he had raised the said amount, only by borrowing from his friends Arun, Bahour Kurivinatham, Sagayaraj and his uncle Balakrishnan. He has stated that his contribution towards the sum of ₹ 19,00,000/- is only to the extent of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same and make the presumption under Section 139 of N.I.Act to become conclusive. It has been held time and again by the Hon'ble Supreme Court that the action taken for debts on cheques is largely civil in nature, but only to enforce the reliability of the cheques issued during business transaction, the criminal proceedings have been given with legal sanction. 11. The learned counsel for the petitioner submitted that out of contention and the decision of the Hon'ble Supreme Court rendered in Basalingappa -vs- Mudibasappa reported in 2019 (5) SCC 418, in order to support his submission that for rebutting the initial presumption the accused need not to come to box and he is liberty to take his defence from the weakness and contradiction in the evidence of the complainant and claim preponderance of probabilities in his favour. In the said judgment, it is held as under:- 13. This Court in Bharat Barrel Drum Mfg. Co. v. Amin Chand Payrelal [ Bharat Barrel Drum Mfg. Co. v. Amin Chand Payrelal , (1999) 3 SCC 35] had occasion to consider Section 118( a ) of the Act. This Court held that once execution of the promissory note is admitted, the presumption under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it did not exist. 14. S.B. Sinha, J. in M.S. Narayana Menon v. State of Kerala [M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30] had considered Sections 118(a), 138 and 139 of the Act, 1881. It was held that presumptions both under Sections 118(a) and 139 are rebuttable in nature. Explaining the expressions may presume and shall presume referring to an earlier judgment, the following was held in para 28 : (SCC p. 49) 28. What would be the effect of the expressions may presume , shall presume and conclusive proof has been considered by this Court in Union of India v. Pramod Gupta [Union of India v. Pramod Gupta, (2005) 12 SCC 1] , in the following terms : (SCC pp. 30-31, para 52) 52. It is true that the legislature used two different phraseologies shall be presumed and may be presumed in Section 42 of the Punjab Land Revenue Act and furthermore although provided for the mode and manner of rebuttal of such presumption as regards the right to mines and minerals said to be vested in the Government vis- -vis the absence thereof in relation to the lands presumed to be retained by the landowners but the same would not mean that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able defence. In para 13, the following has been laid down : (SCC p. 446) 13. The High Court in its order [Mohan v. Rangappa, 2005 SCC OnLine Kar 783] noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 0886322 dated 8- 2-2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable. 11. In the case in hand, the petitioner/accused has consistently stated that the complainant did not have sufficient funds and it is not possible or probable to presume that he had lent the huge sum to the accused. Unless the cheques which were returned for 'insufficient funds' were proved to have been issued for legally enforceable debt, the action taken under Section 138 of N.I.Act will fail. Since the complainant did not prove that he had procured funds from his alleged friends and rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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