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TMI Blog2022 (2) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the proposition that the presumption can be rebutted by the accused. It can be rebutted by the accused by leading defence evidence or by discrediting the claims made by the complainant by effective cross examination or confronting the complainant with certain documents. Another aspect of the matter is that the presumption would operate when foundational facts are established by the complainant. One of the relevant facts in this regard is the material, which is required to be placed on record by the complainant as regards the details of when and the manner in which the amounts were advanced to the accused and the source of such amounts supported by cogent material on record. The failure of the appellant in showing the said amounts in the Income Tax Returns is also a relevant factor, which the Sessions Court took into consideration while reversing the conviction and sentence - it is found that the Magistrate had erred in proceeding to convict and sentence the respondent no. 1 under Section 138 of the aforesaid Act and that the Sessions Court was justified in interfering with the same. Appeal dismissed. - CRIMINAL APPEAL NO. 27 OF 2015 - - - Dated:- 1-2-2022 - MANISH P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint filed by the appellant against the respondent no. 1 under Section 138 of the aforesaid Act and documents pertaining to the withdrawal of the said complaint. In the statement of the respondent no. 1 recorded under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.), he stated that a false case was filed against him and the appellant had misused the cheques, which were given long back when the respondent no. 1 had obtained loan from the Goa State Co-operative Bank Limited. It was stated that the said cheques were never issued in favour of the appellant. 5. On 14.05.2014, the Magistrate passed judgment and order, holding that the appellant was able to prove his case against the respondent no. 1. It was held that presumption operated in favour of the appellant under Sections 118 and 139 of the aforesaid Act. It was held that the presumption was not rebutted by the respondent no. 1 by leading evidence and mere statement under Section 313 of the Cr.P.C. would not inure to the benefit of the respondent no. 1. On this basis, the Magistrate convicted the respondent no. 1 under Section 138 of the aforesaid Act, sentencing him to pay compensation of ₹6,05,000/- to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Ravindra Vassant Kenkre Vs. Mrs. Nutan Damodar Prabhu Another (order dated 28.06.2012, passed in Criminal Miscellaneous Civil Application No. 233/2011 in Stamp Number Main No. 2828/2011) and in the case of Patricio D'Souza Vs. Mr. Oscar D'Souza Another, 2008 ALL MR (Cri) 3321. 9. Mr. Mahesh Amonkar, learned Additional Public Prosecutor appeared on behalf of the formal respondent i.e. respondent no. 2, the State of Goa. 10. In the present case, the appellant has assailed the findings rendered by the Sessions Court, whereby the conviction and sentence imposed upon the respondent no. 1 has been quashed and set aside and it is declared that the respondent no. 1 is acquitted of the offence under Section 138 of the said Act. Since, the impugned judgment and order is of reversal of conviction, this Court has considered the rival submissions and documents in detail. 11. The material available on record shows that the case of the appellant before the Magistrate was that since he was having friendly relations with the respondent no. 1, he had advanced certain amounts to the said respondent on different dates, totaling to an amount of 6 lakhs. It was claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch amounts to the respondent no. 1 in his Income Tax Returns. Nothing was stated even in the complaint or in the affidavit in evidence tendered on behalf of the appellant as to the source of such cash amounts allegedly advanced to the respondent no. 1. There was no the Bank Account statement showing withdrawals of such amounts advanced to the respondent no. 1. 15. The respondent no. 1 confronted the appellant during the cross examination with the documents pertaining to the earlier similar complaint filed under Section 138 of the Act in the year 2008, pertaining to dishonour of cheque of ₹2 lakhs. The said complaint was admittedly withdrawn by the said appellant on the ground that the matter was settled between the parties. A suggestion was given in cross examination that the appellant had withdrawn the earlier complaint because the respondent no. 1 had told the appellant that he would be submitting a complaint to the Bank that the cheques given to the Bank in the context of a loan advanced to the respondent no. 1 were misused by the appellant, who was admittedly working as Branch Manager of the Bank. It was conceded in the cross examination by the appellant that in the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant as regards the details of when and the manner in which the amounts were advanced to the accused and the source of such amounts supported by cogent material on record. The failure of the appellant in showing the said amounts in the Income Tax Returns is also a relevant factor, which the Sessions Court took into consideration while reversing the conviction and sentence. Therefore, reliance placed by the learned Counsel for the appellant on the judgments of the Supreme Court in the case of T. Vasanthakumar (supra) and Bir Singh (supra) can be of no avail because in the said judgments, it has been laid down that once the presumption operates, the onus would be on the accused to rebut such a presumption. There can be no quarrel with the said proposition, but, at the same time, the facts of each case would have to be analyzed before applying the ratio of the said judgments. 19. A perusal of the judgment upon which the respondent no. 1 has placed reliance shows that in the case of Basalingappa (supra), the Supreme Court has laid down that presumption in such cases is rebuttable when a probable defence is raised. The judgment of this Court in the case of Ravindra Kenkre ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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