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TMI Blog2009 (10) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... to bounce for lack of sufficient funds. The complainant sent separate legal notices, both dated 14.2.2007 in respect of the said two cheques demanding payment. The accused received the said notices and sent a reply. 4. In the reply, the accused took the plea that he was not liable to pay any amount to the complainant. The accused alleged that the complainant was doing money lending business and was in the habit of taking blank cheques and then filling the same and claiming huge amounts from the people. As regards the claim of the complainant that the said cheques were issued towards the sale amount of the shop of the accused situated at the New Market, Margao, Goa, the accused sated that the accused did not own any shop in the said market. The accused denied that the complainant had advanced to the accused Rs. 11,95,200/-. The accused also called upon the complainant to give the details of the alleged payment of Rs. 11,95,200/- including the date of alleged payment, the manner of payment, the place where payment was made and the names of the witnesses who were present. The accused also called upon the complainant to give the copies of the said cheques so that the accused could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the accused in his said replies dated 21.2.2007 but proceeded to file the complaint and examine himself in support of the same. The accused did not lead any evidence but filed an additional written statement and in it further stated that both the cheques were fabricated. The accused also stated that the said cheques were blank cheques given to the wife of the complainant as security towards the amount of Rs. 10,000/- and Rs. 1,80,000/- respectively taken by the accused from the complainant and his wife in the years 2003 and 2004. The accused also stated that subsequently the accused in the year 2004 asked the complainant for a loan of Rs. 2,00,000/- and at that time the second cheque was taken as security but the entire sum of Rs. 1,80,000/was repaid by the accused to the complainant and his wife within six months but the complainant did not return the cheque because the said cheque was not signed and filled and was merely a piece of paper and was misplaced. The accused further stated that both the cheques were not in her handwriting and they were not issued by the accused, as claimed by the complainant. 6. The Learned Magistrate after considering the evidence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement filed were not at all proved by the accused. Learned Counsel has placed reliance on K. Prakashan v. P.K. Surenderan (2008) 1 SCC 258 and Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54. Learned Counsel has also referred to the case of Wilson Fernandes v. Nitin Pandurang Chodankar 2004 (2) G L.R. 439. 8. On the other hand, Shri Kamat, the Learned Counsel on behalf of the accused, has firstly submitted that there is no averment in the complaint that the two cheques were given by the accused to the complainant in discharge of a legally enforceable liability. Learned Counsel further submits that the cross examination of the complainant shows that the case of the complainant is far from probable. Learned Counsel further submits that it is difficult to accept that the complainant would have lent two large sums of money within a span of four days and in case the said sums were advanced by the complainant in the presence of the said Mr. Mascarenhas or his wife, it was incumbent upon the complainant to have examined them to support his case and since the complainant has not examined them, this is a fit case to draw an adverse inference against the complainant, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t once the accused has failed to discharge his initial burden, it shifts to the complainant. 11. The Apex Court in K. Prakashan (supra) held that the accused is required to discharge the burden of proof by preponderance of probability and further held that the Act raised two presumptions, firstly in regard to the passing of consideration as contained in Section 118(a) and secondly a presumption that a holder of a cheque received the same of the nature referred to in Section 139 and both the presumptions were rebuttable in nature and while the standard of proof so far as the prosecution is concerned, is proof of guilt beyond reasonable doubt, the one on the accused is only mere preponderance of probability and further held that considering the nature of burden upon the prosecution vis-a-vis the accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the afore mentioned provision. The Apex Court also held that it is trite law that if two views are possible, the Appellate Court shall not reverse a Judgment of acquittal only because another view is possible to be taken. 12. Reverting to K. J. Bhat, (supra) the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of any debt or liability. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. The Apex Court further held that in a trial under Section 138 of the Act the accused has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non existence of consideration and that by leading direct evidence because the existence of negative evidence is entirely possible nor contemplated. At the same time it is clear that bare denial of the passing of the consideration and existence of that, apparently would not se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant by way of repayment of advance of Rs. 11,95,200/- as the accused did not wish to sell the shop earlier agreed to be sold by the accused to the complainant. The complainant did not set out in his complaint as to when he advanced the said sum of Rs. 11,95,200/- to the accused and this inspite of the fact that in the reply the accused had called upon him to do so. In cross examination the complainant stated that the said amount was advanced in the year 2004 in two installments and within four days and the complainant wished the Court to believe that he had advanced the said sums of Rs. 6,97,200/- and Rs. 4,98,000/- in cash to the accused in a span of four days without any receipt or for that matter any agreement for the sale of the shop. The complainant in further cross examination, stated that the shop was agreed to be purchased by him and by one Conceicao Mascarenhas and the latter had advanced a sum of Rs. 10,00,000/while he took a sum of Rs. 1,95,200/- from his wife. However, the complainant did not spelt out this position in the complaint nor explained as to why, if two of them wanted to purchase the shop, there was no much divergence in their contribution towards the purch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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