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TMI Blog2023 (1) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... s and attending circumstances. In the case of M/S. KALAMANI TEX ANR VERSUS P. BALASUBRAMANIAN [ 2021 (2) TMI 505 - SUPREME COURT] , the learned Trial Court had dismissed the complaint. In appeal, at the behest of the complainant, the same was allowed and the accused were convicted for the offence punishable under Section 138 of the N.I. Act - It is seen that in the facts of the said case, this Court found that the defence raised by the appellants/accused did not inspire confidence or meet the standard of preponderance of probability. In the present case, the defence raised by the appellant satisfies the standard of preponderance of probability . A distinguishing fact between the criminal proceedings and the civil proceedings in the present case is that, while in the criminal proceedings the complainant had failed to produce the promissory notes, in the civil proceedings, the complainant had proved the promissory notes. The High Court found that the Civil Appeals were required to be decided on the basis of the preponderance of probabilities. The High Court found that the complainant had established that he was working as a LIC Agent, that his father was owning extensive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iffrespondents for recovery of money on the basis of promissory notes were decreed. 3. For the sake of convenience, the parties will be referred to as their status before this Court. 4. Since both the Criminal Appeals arise out of a common judgment, we consider it apposite to refer to the facts in Criminal Appeal No.1978 of 2013. Insofar as the Civil Appeals are concerned, while they arise out of different judgments, for the sake of convenience, we shall refer to the facts arising from Civil Appeal No.10501 of 2013. 5. The present appeals arise from the following factual matrix: 5.1 In 1992, the Appellant Rajaram s wife subscribed to a 5year chitfund with one Maruthachalam, the Respondent in Criminal Appeal No. 1978/2013 and Civil Appeal No.10500/2013. Upon the Respondent Maruthachalam s persuasion that, in order to be a successful bidder, a security by way of a blank cheque must be submitted, the Appellant submitted two signed blank cheques bearing nos. 237954 and 237956 on behalf of his wife, since she did not have a bank account. It is to be noted that the cheques were drawn on the account of M/s Brinda Engineering, the sole proprietorship concern of the Appellant, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases were dismissed by the learned Trial Court on 10th July 2001 vide separate judgments. 5.8 Pursuant to the dismissal of the aforesaid cases, both the Respondents instituted civil/original suits for recovery of money on the basis of Promissory Notes. 5.9 Original Suit No. 112/2003 (earlier OS No. 602/2002) was instituted by the RespondentNachimuthu, alleging that the Appellant had borrowed a sum of Rs. 3 Lakhs on 20th October 1998 from him and had executed a promissory note on the same day thereby promising to repay the same with interest at 24% per annum. It was further alleged that the Appellant had issued a cheque on 20th October 1999 for Rs. 3,50,000/towards the discharge of his liability and when the same was presented for encashment, it was dishonoured as the Appellant had closed the account. Criminal Case No. 32/2000 was pursued under Section 138 of the N.I. Act which was dismissed against which an appeal was pending before the High Court. 5.10 Another Original Suit No. 266 of 2004 (earlier OS 746 of 2002) was instituted by the Respondent-Maruthachalam, alleging that the Appellant had borrowed a sum of Rs. 3 Lakhs on 25th October 1998 from him and had executed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.3,00,000/each as on 20th October 1998 and 25th October 1998, when the promissory notes were said to have been executed. It is further submitted that although it was the Respondents case that they had given the amounts out of their agricultural income, since they had not declared the same in their Income Tax Returns from 19921999, thus, there was no material to show that they could have lent money. To buttress her submissions, the learned counsel relies on the judgment of this Court in the case of, Basalingappa v. Mudibasappa (2019) 5 SCC 418, 9. Per contra, Mr. V. Prabhakar, learned counsel for the Respondents, submits that the Appellant Raja Ram had failed to produce any material evidence to substantiate the claim that his wife subscribed to the chitfunds run by Respondent, Maruthachalam. He submitted that the High Court rightly observed that no material was produced by the Appellant Raja Ram to prove that the cheques and promissory notes were issued only as a security for such a chit. He further submitted that no legal proceedings were initiated for the recovery of the alleged amount due by the Appellant either. 10. The learned counsel submitted that there arose no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que was for the discharge of any debt or other liability. It has however been held that the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It has further been held that to rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. It has been held that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 14. In the said case, i.e. Baslingappa v. Mudibasappa (supra), the learned Trial Court, after considering the evidence and material on record, held that the accused had raised a probable defence regarding the financial capacity of the complainant. The accused was, therefore, acquitted. Aggrieved thereby, the complainant preferred an appeal before the High Court. The High Court reversed the same and convicted the accused. This Court found that unless the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the defence witnesses and the attending circumstances, the learned Trial Court found that the defence was a possible defence and as such, the accused was entitled to benefit of doubt. The standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the learned Trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances. 21. The scope of interference in an appeal against acquittal is limited. Unless the High Court found that the appreciation of the evidence is perverse, it could not have interfered with the finding of acquittal recorded by the learned Trial Court. 22. Insofar as the reliance placed by Mr. Prabhakar on the judgment of this Court in the case of Bir Singh v. Mukesh Kumar (supra) is concerned, in the said case, though the accused was convicted by the learned Trial Court, which conviction was maintained by the Appellate Court, the High Court in its revisional jurisdiction interfered with the same and acquitted the accused. This Court found that in exercise of revisional jurisdiction under Section 482 of the Code of Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in defence of his case, the presumption under Section 139 of the N.I. Act could not be rebutted. As such, the said judgment also would not be applicable to the facts of the present case. 27. In that view of the matter, we are further of the considered view that the High Court was not justified in reversing the order of acquittal of the appellant. 28. That leaves us to consider the Civil Appeals. Insofar as the Civil Appeals are concerned, the High Court, by two different judgments and orders, has reversed the judgments and orders of the learned Trial Court dismissing the suits, thereby decreeing them. It is a settled proposition of law that the standard of proof in criminal proceedings differs with that in civil proceedings. 29. A distinguishing fact between the criminal proceedings and the civil proceedings in the present case is that, while in the criminal proceedings the complainant had failed to produce the promissory notes, in the civil proceedings, the complainant had proved the promissory notes. The High Court found that the Civil Appeals were required to be decided on the basis of the preponderance of probabilities. The High Court found that the complainant had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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