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TMI Blog2022 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... day, the accused had issued a post dated cheque (Ex.P.1) dated 21.01.2014 for a sum of Rs. 25,00,000/-, drawn on City Union Bank, Thiruchengodu Branch. When the complainant presented the cheque for collection through his Karur Vysya Bank, Erode Branch, it was returned on 25.01.2014 as "Payment Stopped by the drawer". Thereafter, the complainant issued a statutory notice to the accused on 25.01.2014 and the notice was returned on 28.01.2014 as refused, and thereafter, the complainant has filed the private complaint before the Court against the accused for the commission of offence under Sec.138 of the Negotiable Instruments Act. 2.2. Thereafter, the case was taken on file and during the course of trial, on the side of the complainant, the complainant was examined herself as PW.1 and six documents were marked as Exs.P.1 to P.6. On the side of the accused, three witnesses have been examined as DWs.1 to D.W.3 and Exs.D.1 to D.9 were marked. 3. After the conclusion of the trial and on considering the materials available on record, the learned trial Judge found the accused guilty for the offence under Sec.138 N.I. Act and convicted and sentenced him to undergo one year simple imprisonm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... robabilities of the case of the complainant is exposed before the Court. The learned counsel for the respondent relied on the following decisions in support of his defence: S.No. Name of the parties Citation particulars 1 Basalinga Vs.Mudibasappa 2019(5) SCC 418 2 John K.Abraham Vs. Simon C.Abraham 2014(2) SCC 236 3 John K.John Vs. Tom Varghese and another 2007(12) SCC 714 4 Kumar Exports Vs. Sharma Carpets 2009(2) SCC 513 5 Chandrappa and others Vs. State of Karnataka 2007(4) SCC 415 7. The point for consideration is Whether the judgment of the learned Sessions Judge in acquitting the accused from the offence under sec.138 of the Negotiable Instruments Act basing on the materials available on record is fair and proper? 8. The complainant and the accused are already known to each other as family friends. The respondent/ accused is working as an appraiser in the City Union Bank, Thiruchencode. The husband of the accused is doing jewellery business. The signature in the cheque (Ex.P.1) was not disputed by the accused. However she has stated that since the cheque was stolen by the petitioner/complainant she advised her banker to stop payment. It is cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned as DW.2, and he has stated in his evidence that he only made arrangements for selling the complainant's land in favour of the accused. Despite the sale, the petitioner /complainant had executed a power of attorney document dated 12.06.2013 in favour of the accused. On the very same day, when the power document was executed in favour of the respondent/accused, the complainant and her daughters had executed a receipt (Ex.D.2) in favour of the respondent/accused by stating that as per the power document they were in receipt of the entire sale consideration of Rs. 22,50,000/- and there was no further dues. 11. The complaint transaction of Rs. 25,00,000/- is said to have taken place on 10.11.2013, which is subsequent to the execution of the above receipt dated 12.06.2013. It is pertinent to note from the cross examination of DW.1, that the complainant had received the entire true sale consideration of Rs. 42,50,000/- from the accused. However the sale price is shown in the receipt as Rs. 22,50,000/-. From the pattern of documents executed between the parties during the above sale transactions would show that the respondent had purchased the properties as a part of his real estate b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the month of September-2013 for a sum of Rs. 5,00,000/- was dishonoured. 16. PW.1 has stated in her evidence that she did not have any proof to show that she was in possession of Rs. 25,00,000/- during the relevant period in order to give it as a loan to the respondent/accused. As it stated already the standard for rebuttal proof can be inferred even from the improbabilities exposed in the case of the prosecution. When the financial capability of the complainant is challenged by showing a prima-facie proof or circumstance, it is obligatory on the part of the complainant to substantiate her financial potential for lending the amount involved in the cheque to the accused. But the petitioner/complainant has failed to undertake such an exercise and rebuild the presumption once again in her favour. 17. In this context of reverse burden on the part of the accused, it is relevant to refer the judgement of the Supreme Court reported 2019(5) SCC 418 [Basalingappa Vs.Mudibasappa]. The relevant portion is under: "20. 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant- accused cannot be expected to discharge an unduly high standard of proof. In paragraph Nos. 27 and 28, following was laid down:- "27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the case of the complainant. Because the object of punishment contemplated u/s 138 N.I. Act for dishonour of cheque is for improving the creditability of the Negotiable Instruments exchanged during commercial transactions and to ensure business viability and not the deterance of criminals. 19. Though it is open to the accused to cull out the improbabilities from the case of the complainant, in the present case, the respondent /accused had come to the box and got herself examined. She was also subjected to the examination by the complainant. The admissions given by PW.1 during her cross-examination, the materials produced as defence side documents coupled with the evidence of DW.3 would show that the accused did not take a casual defence. 20. Though, it might be an exaggeration on the part of the accused to state that the complainant had stolen away her cheques when she came come to her house in order to see her sick husband, there are materials to probablise her defence that the impugned cheque was not supported by consideration and it was not given for discharging a legally enforceable liability or debt. A person, who already aggrieved due to non payment of a money-due by a de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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