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TMI Blog2023 (4) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legally enforceable debt - It is for the accused to adduce evidence of such facts and circumstances to rebut the presumption that such debt does not exist or that the cheques are not supported by consideration. In the present case, the accused has set up the specific defence in the reply given to the legal notice sent by the complainant. The accused has specifically raised the case of complainant being partner in a Krishna Lease Finance and the manner in which the cheque has been misused. The complainant in his cross examination has categorically admitted about defence of misuse of a signed blank cheques lying with Krishna Finance, being taken in reply to notice - In opinion of this Court, the accused counsel in cross examination has raised probable defence by questioning his financial capacity which raised serious doubt of the very claim of handing over the loan of Rs.10 lakhs in cash to accused. Thus, the existence of legally enforceable debt in absence of cogent material brought by the complainant, has not been established. The learned Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawn an amount of Rs.5,95,000/-from his bank account and remaining amount of Rs.4,05,000/- was arranged from friends and the relatives. The complainant has claimed to have advanced an amount of Rs.10 lakhs to the respondent no.1. 3.2. Upon completion of period of two months, the complainant had started demanding the aforesaid amount, the accused had issued cheque dated 9.4.2014 of Dena Gujarat Gramin Bank, Kansa Branch bearing cheque no.178627 of an amount of Rs.10 lakhs which was signed in presence of the complainant. It is further contended that the accused had assured the complainant of realization of the amount on presentation of such cheque. The complainant had relied upon the aforesaid assurance of accused and had presented the said cheque on 9.4.2014. However, the said cheque was dishonored on 10.04.2014 which was handover along with returned memo with endorsement of insufficient funds which was received on 10.04.2014. 3.3. In such circumstances, the complainant was constrained to give legal notice dated 15.4.2014, which was sent on the known address of the accused by Registered Post AD. It is further contended that the said notice was duly served on accused on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n recorded under Section 313 of the Code of Criminal Procedure. The accused has raised specific defence by submitting that complainant was one of the partner in Krishna Lease Finance and had misused the blank signed cheque of the complainant by incorporating details, the complainant has tried to encash the amount without any existence of transaction or consent of the complainant. The complainant has placed written submissions which is forming part of the record at Exh.106. 8. At the outset, the trial Court has upon examination of the record noted that the mandatory requirement under Section 118 and Section 139 of the Negotiable Instruments Act, for filing of complaint under Section 138 of the Negotiable Instruments Act, has been fulfilled. The trial Court has proceeded to closely scrutinize the cross-examination of the complainant. On evaluation of the evidence of the complainant, the learned Magistrate has found the version of the complainant of having advanced huge amount of Rs.10 lakhs suspicious in absence of promissory note or any agreement reduced in writing. As against that, the complainant has admitted in cross that his annual income does not exceed an amount of Rs.5 lak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquittal. 10. In support of his submissions, he has relied upon the decision of the Hon ble Supreme Court in the case of Tedhi Singh vs. Narayan Dass Mahant reported in (2022) 6 SCC 735. By relying upon the legal principle culled out, he submitted that the complainant can only be called upon to give his evidence unless case is set up in the reply to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. He submitted that in fact the obligation is on the accused to demonstrate that the complainant in a particular case did not have the capacity and therefore the case of the accused would only be accepted by producing independent material, namely, by examining his witnesses and producing documents. He, therefore, submitted that the trial Court committed error in shifting burden upon the complainant to prove his financial capacity, which otherwise was not a ground raised in the reply to the legal notice by the accused. He, therefore, urge this Court to grant leave to appeal. 11. On the other hand, Mr. Urvesh Prajapati, learned advocate for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable doubt. Lastly, he has relied upon the decision of this Court in the case of Bhagwandas Gangarambhai vs. Pradipkumar Hargovanbhai reported in 2022 (4) GLR 3101 and has submitted that this Court after considering the various decisions of the Hon ble Supreme Court has held that the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence, the standard of proof of rebutting such presumption is that of preponderance of probabilities . By making aforesaid submission, learned advocate for the respondent- original accused requested not to grant leave to appeal. 13. The only question which falls for consideration of this Court is whether the learned Magistrate committed error in recording order of acquittal while shifting the burden upon the original complainant to prove the case beyond the reasonable doubt. 14. From the record, on facts the learned Magistrate upon close scrutiny of the cross examination of the complainant has recorded finding that the complainant claims to have advanced huge amount of Rs.10 lakhs in cash to the accused without any agreement reduced in writing or execution of any promissory note. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to rebut the presumption that such debt does not exist or that the cheques are not supported by consideration. 17. Considering the scope of the presumption to be raised under Section 139 of the Act and the nature of evidence to be adduced by the accused to rebut the presumption, in Kumar Exports v. Sharma Carpets(2009) 2 SCC 513, the Supreme Court in paras (14-15) and paras (18-20) held as under:- 14.Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. 15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) may presume (rebuttable), (2) shall presume (rebuttable), and (3) conclusive presumptions (irrebuttable). The term presumption is used to designate an inference, affirmative or disaffirmative of the existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable 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 debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted in cross that except for signature, the date, name and name of payee appears in different hand writing. Subsequently, the complainant has brought on record Income Tax Returns filed for AY 2013-14 to 2016-17 which is exhibited at Exh. 76 to Exh.80. However, the fact remains that in none of the year, the annual income has gone beyond Rs.3 lakhs i.e. less than Rs.10 lakhs. He has also admitted that at no stage amount of Rs.10 lakhs was available as balance in his accounts. In opinion of this Court, the accused counsel in cross examination has raised probable defence by questioning his financial capacity which raised serious doubt of the very claim of handing over the loan of Rs.10 lakhs in cash to accused. Thus, the existence of legally enforceable debt in absence of cogent material brought by the complainant, has not been established. 21. In view of the aforesaid evidence brought on record, in my opinion, the learned Magistrate has rightly shifted the burden upon the complainant to prove the case beyond reasonable doubt. In absence of any cogent material being brought on record in the form of evidence, the learned Magistrate has proceeded to record the order of acquittal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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