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TMI Blog2009 (1) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no dispute about the fact that the respondent No. 1 issued a cheque No. C532820 dated 16-01-1996 for Rs. 20,000/- drawn on the United Western Bank Limited, Aurangabad, in favour of the appellant/complainant. The cheque in question (Exh-26) was presented by the appellant to his Bank, namely, the Indian Overseas Bank, Aurangabad branch. The cheque was returned to him on 28-02-1996 with an endorsement funds not arranged for . The cheque had bounced and as such, a demand notice was issued to the respondent No. 1 on 06-03-1996 by the appellant through his advocate. The demand notice was duly served on him. The respondent No. 1 gave reply dated 30th March, 1996 whereby he denied the existence of liability to pay the amount shown in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the appellant failed to prove existence of legal liability for payment of Rs. 20,000/-. Consequently, the respondent No. 1 came to be acquitted of the charge. Though served, none appeared for the respondent No. 1 (accused) in this Court. 5. Heard learned advocate Mr. P.M. Yelnoorkar for the appellant and learned A.P.P. Mr. V.H. Dighe for the respondent No. 2/State. 6. Before I proceed to embark upon scrutiny of the evidence tendered by the parties, let it be noted that there is no documentary evidence to show that the respondent No. 1 - Jiyalal had entered into an agreement of sale in respect of specific plots owned by the appellant. Nor there is any iota of evidence on record to show that the appellant owned open plots, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 1/accused. His version reveals that he was previously dealing in business as a Security Contractor at Mumbai. He deposed that he paid Rs. 20,000/- to the respondent No. 1 contemporaneously at the time of issuance of the cheque (Exh-26). It is suggested to him that he had agreed to sell six (6) plots to the respondent No. 1 - Jiyalal. He denied the suggestion as regards agreement of sale in respect of six (6) plots. He also denied that an amount of Rs. 6000/- was paid to him towards earnest money in respect of the said transaction. Noting of much importance could be gathered from his cross-examination. 9. The version of DW Jiyalal would show that he had orally agreed to purchase eight (8) plots at rate of Rs. 10,000/- each from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence, that there was no debt or liability. The burden of proof is on the accused to rebut the legal presumption enumerated under Section 139 and 118 of the Negotiable Instruments Act. Once it is established that the cheque was issued by the accused, then the burden shifts on him to prove that it was not issued in order to discharge any existing legal liability for repayment of the debt. The standard of proof required for the purpose of rebuttal of such presumption is not, however, heavy. The accused is required to strengthen his defence by showing existence of probabilities of the defence being truth bearing. The standard of proof in such a case would be that of a standard comparable to civil cases and would lie between the range of prob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had cheated the respondent No. 1 in respect of the transaction of sale in respect of the two (2) plots. 12. The version of DW Jiyalal reveals that since he had no documentary evidence with him, he got recorded conversation with the appellant on a tape-recorder with the aid of DW Sanjay. The learned Judicial Magistrate appears to have given undue importance to such tape-recorded conversation. The version of DW Sanjay purports to show that the respondent No. 1 was his tenant in respect of one (1) room. He deposed that the respondent No. 1 had agreed to purchase a plot from the appellant but because there was no document in respect of such transaction, tape-recorded conversation was brought into existence. He had carried the pocket tape-rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tful. Needless to say, the respondent No. 1 (accused) failed to discharge the burden of proof in order to rebut the legal presumption available under Section 118 and 139 of the Negotiable Instruments Act. 14. Considering the foregoing discussion, it follows that the appellant duly proved the fact that he had lent Rs. 20,000/- to the respondent No. 1 against issuance of the cheque (Exh-26) by the latter. It is duly proved that the respondent No. 1 failed to arrange for payment of the money without any legal reasons. Hence, the impugned judgement of acquittal is unsustainable. The offence is duly proved and, therefore, I have no hesitation in holding that the respondent No. 1 - Jiyalal is guilty for offence punishable under Section 138 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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