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TMI Blog2022 (1) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... fter issuing a statutory legal notice and following the legal mandates, the complainant has filed the private complaint against the respondent/accused for the offence under Sec.138 of the Negotiable Instruments Act,1881. 2.1. During the trial Court on the side of the complainant 3 witnesses have been examined as PW.1 to 3 and Exs.P1 to 5 were marked. The respondent /accused examined himself as DW.1 and 4 documents were marked as ExD1 to D4 and three exhibits were marked as Exs.C1 to C3. 2.2. After concluding the trial and on consideration of the materials available on record, the learned Trial Judge had found the accused guilty for the offence under Sec.138 of the Negotiable Instruments Act,1881 and sentenced him to undergo 10 months simple imprisonment and imposed a fine of Rs. 2,000/- in default to undergo 2 months simple imprisonment. Aggrieved over that, the respondent /accused had preferred an appeal before the Sessions Court in Crl.A.No.119/2009. The Appellate Court had allowed the appeal by seting aside the judgement of the trial Court. Hence the complainant has challenged the same by way of filing this Criminal Appeal. 3. Heard the submissions of Mr.R.Sankarasubbu, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance. It is alleged by the accused that during the said transactions with Periyasamy, he had issued his signed blank cheques by way of security and after repaying the loan he failed to get back the cheques from Periyasamy. He has stated further that he could not get back the cheque from the Finance Company because he learnt that Periyasamy under who had the custody of the cheque fell sick. 9. The defence of the respondent/ accused is that the complainant who is the son of the said Periyasamy had also been inducted as a partner for Royal Finance and he made use of the cheque in order to file this case against the respondent/accused. The learned trial Court had appreciated the defence of the accused on the basis of his statements before the Court. 10. It is seen from the evidence of PW.1 that the accused was taking a dual stand. At one stage the accused has stated that he availed a loan of Rs. 1,00,000/- from Periyasamy and that was settled. At another stage he has stated that he availed a loan of Rs. 25,000/- and settled it already. During questioning under Sec.313 Cr.P.C., the accused denied his very signature on the cheque. Despite the learned trial Judge has appreciated the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumption under Sec.139 of the Negotiable Instruments Act, the accused is at liberty to explore the improbabilities in the case of the complainant himself and use it in his favour. In this context it is relevant to refer the judgement of the Hon'ble Supreme Court reported in 2019(5) SCC 418 [Basalingappa Vs.Mudibasappa]. The relevant portion is under: "18. A Three-Judge Bench of this Court in Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 had occasion to elaborately consider provisions of Sections 138 and 139. In the above case, trial court had acquitted the accused in a case relating to dishonour of cheque under Section 138. The High Court had reversed the judgment of the trial court convicting the accused. In the above case, the accused had admitted signatures on the cheque. This Court held that where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertained to a legally enforceable debt or liability, however, this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. In Paragraph No.13, following has been laid down:- "13. The High Court in its order noted that in the course of the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof. 28.In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." 15. As per the above decision, it is not always essential that the standard of rebuttal proof is strict liability like beyond reasonable doubt and it can be a through preponderance of probabilities. But in the case in hand the rebuttal circumstances taken up by the defence is not even consistent enough to rebut the initial presumption drawn in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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