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TMI Blog2020 (5) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... t justification has been given by the trial court while drawing inference in respect of financial capacity of the complainant. Even if, the other inference is capable of being drawn, this court, in view of the settled position of law as enunciated by the apex court in CHANDRAPPA AND ORS. VERSUS STATE OF KARNATAKA [ 2007 (2) TMI 704 - SUPREME COURT] should not embark upon to disturb the finding of acquittal recorded by the trial court. In RANGAPPA VERSUS SRI MOHAN [ 2010 (5) TMI 391 - SUPREME COURT] the apex court has clearly held that it is the settled position of law for that rebutting the fact that might lead to the presumption under Section 139 of the NI Act, the standard of proof is of preponderance of probabilities. From the evidence of the complainant it has been shown that the debt, for discharge of which the cheques were issued may not be real, if seen in the light of the financial capacity of the complainant. Thus, in the considered view of this court, the accused-respondent No.1 has discharged his onus by creating a serious doubt in respect of financial capacity of the complainant. This court is not inclined to disturb the finding of the trial court by acquitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No.1 or not. Even though the complainant s lawyer had sent a letter to the postal authority to confirm the delivery of the letter but till the day of filing the said complaint, such date could not be confirmed. On 05.07.2013 the complainant came to know that the demand notice was delivered on 01.07.2013 but the respondent No.1 according to the complainant requested him to wait for 10-15 days for payment. After lapse of 15 days the complainant contacted the respondent No.1. At that time, the respondent No.1 had strangely denied to make any payment. Cognizance of the complaint was taken and the substance of accusation as drawn under Section 251 of the Cr.P.C. was denied by the respondent No.1. In order to substantiate the incidence of dishonour of cheques by which the legal debt sought to be discharged by the respondent No.1, the complainant adduced 3[three] witnesses including himself as PW-1 and introduced 9[nine] documentary evidence including two cheques [Exbts.1 2]. But the respondent No.1 did not adduce any evidence. After the evidence was recorded at the instance of the complainant, the respondent No.1 as the accused was examined under Section 313 of the Cr.P.C. for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder in due course of the cheque within 30 days of the receipt of the said notice. [3] Thereafter, on such observation as noted above, the trial court held that the accusation as made by the appellant could not be established and the complaint is not maintainable in law inasmuch as the holder in due course of the cheque did not file the complaint within 30 days. Being aggrieved by that judgment, this appeal has been filed. [4] Mr. B. Deb, learned counsel appearing for the appellant while making his submission has contended that the inference drawn by the trial court is grossly perverse inasmuch as the presumption under Sections 138 139 of the NI Act was not drawn without assigning any reasons even though after discharge of the initial burden by the complainant, the respondent No.1 has failed to show that he had no legal obligation to pay. [5] Mr. Deb, learned counsel in order to buttress his submission has referred to the testimony of complaint [PW-1] where he had stated that the respondent had received the notice on 02.07.2013 [page-15 of the examination-in-chief] filed by an affidavit, but neither the respondent No.1 paid the amount mentioned in the cheque nor gave a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 39. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 139 of the NI Act. In Anss Rajashekar vs. Augustus Jeba Ananth [judgment dated 18.01.2019 delivered in criminal appeal Nos.95-96 of 2019] the apex court has exposited the law in the same tune. It has been observed that the expression unless the contrary is proved‟ as used in Section 139 of the NI Act implies that the presumption under Section 139 of the Act is rebuttable. Terming this a provision of reverse onus clause , the three Judge Bench of the apex court has, referred Rangappa vs. Sri Mohan, reported in (2010) 11 SCC 441 to hold that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by preponderance of probabilities. It has been held in Rangappa (supra) as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his shop, the articles on stock were for ₹ 2.5 lacs to ₹ 3.00 lacs. Mr. Lodh, learned counsel has submitted that someone of that economic status cannot be believed to have extended a sum of ₹ 4,00,000/-. Mr. Lodh, learned counsel has categorically submitted that the financial worth of the complainant cannot make the court believe that the complainant had provided the loan to someone for amount of ₹ 4,00,000/- on the same day. [10] In Basa Lingappa vs. Mudibasappa, reported in AIR 2019 SC 1983, where the apex court on revisiting the evidence had observed as follows: 26. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in examination-in-chief the complainant has not mentioned as to on which date, the loan of ₹ 6 lakhs was given to the accused. It was during cross-examination, he gave the date as November, 2011. Under Section 118(b), a presumption shall be made as to date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post dated cheque was given to him i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, Mr. Lodh, learned counsel has contended that even if it is assumed that the cheques were issued by the respondent No.1, it has to be inferred that the complainant had no worth to extend a loan of ₹ 4,00,000/- to the respondent No.1. The respondent No.1 did not make any attempt to show whether the signatures appearing on the cheques were his signatures or not. But the appellant has proved that the signatures appearing in the cheques were of the respondent No.1 as it is noticed that if the allegations are proved, then the presumption under Section 139 of the NI Act would have been drawn. [12] On appreciation of the rival contentions raised by the learned counsel appearing for the parties, as well as on scrutiny of the evidence, the question that emerges for response is that whether the accused-respondent No.1 could rebut the fact in respect of a legally enforceable debt, by deterring presumption under Section 139 of the NI Act? If the question is rephrased it would read as follows: Whether absence of a legally enforceable debt has been made probable on the basis of the material on record? The trial court has observed that the complainant did not have the financial ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s enunciated by the apex court in Chandrappa others vs. State of Karnataka, reported in (2007) 4 SCC 415 etc. should not embark upon to disturb the finding of acquittal recorded by the trial court. In Chandrappa (supra) the apex court has laid down the principle as under: Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. [15] That apart, in Ranga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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