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TMI Blog2012 (8) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... s.P2 and P3. Hence, the appellant issued a statutory notice Ex.P4 under Section 138(b) of Negotiable Instruments Act on 18.02.2003. The postal receipt was marked as Ex.P5. The respondent received the same under Ex.P6 acknowledgment card and sent a reply under Ex.P7. But the respondent/accused did not repay the amount. The respondent knowing fully well that there was no sufficient funds in his account, issued a cheque and thereby committed offence under Section 138 of Negotiable Instruments Act. 2. The learned Magistrate after following the procedure framed necessary charges against the accused. Since the accused pleaded not guilty, the learned Magistrate examined P.W.1 to P.W.3 and marked Exs.P1 to P11 and placed the incriminating evidence before the accused and the accused denied the same. On his side, D.W.1 and D.W.2 were examined and Exs.D1 to D4 were marked. On considering oral and documentary evidence, the trial Court acquitted the accused/respondent stating that the cheque was not issued by the respondent for discharging his legally enforceable debt, since the appellant herein has no financial status to lend him money, against which, the present appeal has been preferred b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he borrowed money from his father-in-law and his friend Rajendran. But, to prove the same, he has not examined his father-in-law and friend Rajendran. So the trial Court considered this aspect and came to the correct conclusion that the appellant is not having any financial status to lend amount to respondent, as he is only a sundry worker. The respondent has rebutted the presumption under Section 139 of N.I. Act, by way of examining himself as D.W.1. The defence has proved by preponderance of probabilities. The respondent has also rebutted the presumption by way of examining D.W.2, an officer from Sub-registrar office, through him, a partition deed was marked, in that, the description of house property alone given, it would not show the financial status of the appellant. To substantiate his arguments, he relied upon the decision of Apex Court reported in (2008) 4 SCC 54 (Krishna Janardhan Bhat v. Dattatraya G. Hedge) and prayed for dismissal of the appeal. 5. Considered the rival submissions made on both sides and the materials available on record. 6. On perusal of record, it is seen that Ex.P1 is a cheque for Rs. 2,75,000/- dated 31.01.2003. The first and foremost question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be paid thereunder. As per Section 20 of the Act, holder of the cheque alone authorised to fill up the blanks. But here, the respondent disputed that he did not issue cheque to the appellant. So the initial burden is on the appellant to prove that the cheque is issued by the respondent for discharging his legally enforceable debt. Except the evidence of P.W.1/complainant, no other evidence was examined to prove that P.W.1 lent a sum of Rs. 2,75,000/- to the respondent on 31.01.2002 and to discharge the same, the respondent had issued a post dated cheque, dated 31.01.2003. 8. While perusing cross-examination of P.W.1, he stated that he possessed only Rs. 50,000/- on 31.01.2002 and hence, he borrowed Rs. 1,00,000/- from his father-in-law and Rs. 1,25,000/- from his friend Rajendran. But he has not examined those persons to prove the same. At this juncture, it is appropriate to consider the defence raised by the respondent. In his evidence, he stated that the appellant herein has no financial status to lend Rs. 2,75,000/- and that has been probabilised by the cross-examination of P.W.1. In his oral evidence itself, P.W.1 stated that he had only possessed Rs. 50,000/- and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f appeal raised by the appellant. The learned counsel for the appellant submitted that the respondent has raised one defence in the written statement and another one in the evidence, which falsifies the case of the defence. In my opinion, the argument advanced by the learned counsel for the appellant, does not hold good. In a criminal jurisprudence, the complainant must prove the guilt of the charges levelled against the accused beyond all reasonable doubt. But the respondent has probabilised his defence and he need not prove the same by beyond all reasonable doubt. 13. The first and foremost point of the appellant/complainant is to prove that Ex.P1 cheque has been issued to him. But here, there is no evidence to show that cheque has been issued to the appellant on 31.01.2002. In his evidence, he fairly conceded that he has no financial status. Furthermore, the defence raised by the respondent has been proved by way of preponderance of probabilities. In such circumstances, it is the duty bound upon the appellant to examine his father-in-law and friend Rajendran, to prove that he obtained the amount of Rs. 1,00,000/- and Rs. 1,25,000/- from them respectively. 14. One more addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lent the same to respondent. Furthermore, he has not filed any document to show that he lent money to the respondent. It is further submitted that any advance taken by way of loan of more than Rs. 20,000/- had to be made by an account payee cheque only. In the case on hand, it is unbelievable that the appellant had paid a sum of Rs. 2,75,000/- by way of cash. To substantiate his arguments, he relied upon para-34 and 35 of the above judgment, which read as follows: 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities . Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. 35. A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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