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TMI Blog2010 (1) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... declaring that the accused has taken the said amount of Rs. 50,000/ - from the complainant and promising to repay the said amount to the complainant on 28-1-2005. It is further the case of the complainant that thereafter the accused again approached her pursuant to which the complainant again extended to the accused a further loan of Rs. 15,000/- on receipt of which, the accused executed an affidavit dated 30-7-2004, declaring that the accused has taken the said amount of Rs. 65,000/- from the complainant. It is further the case of the complainant that in repayment of the said loan amount of Rs. 65,000/-, the accused issued to the complainant cheque bearing No. 225843 dated 28-1-2005 for Rs. 50,000/-, drawn on Account No. 6039 of the accused held in Bank of Baroda, Benaulim Branch. The complainant presented the cheque to his Bank, Bank of India, Margao, who returned the said cheque dishonoured to the complainant on 24-6-2005 along with a Memorandum dated 24-6-2005 of the Bank of Baroda, Margao Branch, as also the Memorandum dated 24-6-2005 of the Bank of Baroda, Benaulim Branch, which stated that the said cheque could not be honoured on account of insufficient funds. On the cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n able to raise a doubt about the loan transaction which was alleged by the Complainant and which was the case of the Complainant. In view of the fact that the trial Court held that the accused was not in a position to prove that the cheque issued by the accused was in discharge of any debt or other liability towards the Complainant, in my view, the other points are inconsequential. 7. I have heard Shri Shirodkar, learned Counsel for the Appellant-Complainant and Shri R.S. Sardessai, learned Counsel for the Respondent-Accused. 8. It is the submission of Shri Shirodkar, that once there is an acceptance of the fact by the accused that he had issued the said cheque in question, a presumption arises that the same was towards discharge of a debt or liability. The learned Counsel submitted that the trial Court has not appreciated the evidence in its proper perspective and has been carried away by the fact that the loan transaction has not been proved by the Complainant. The learned Counsel submitted that though the presumption under Section 139 of the Act is a rebuttable presumption, the accused has not been able to raise any probable defence considering the evidence which has come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Apex Court reported in (1999) 7 SCC 510 : AIR 1999 SC 3762 in the matter of K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr., wherein the legal position is reiterated namely that Section 139 of the Negotiable Instruments Act, enjoins on the Court to presume that the holder of the cheque received it for discharge of debt or liability and the burden was on the accused to rebut the aforesaid presumption. 9. The learned Counsel for the Appellant, therefore, submitted that considering the evidence which is on record, the acquittal of the accused was unwarranted and, therefore, the impugned Judgment is required to be interfered with in the appellate jurisdiction of this Court. 10. On behalf of the accused, the learned Counsel Shri Sardessai at the outset placed reliance on a Judgment of a learned Single Judge of this Court reported in 2008 Cri LJ 2405 : 2008 (3) AIR Bom R 721 in the matter of Shri Vinay Parulekar v. Shri Pramod Meshram, in support of the submission that in the instant case, the accused has success fully rebutted the statutory presumption by the cross-examination of the Complainant. The learned Counsel relying upon the said Judgment further submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be entitled to acquittal. The accused can prove the non-existence of a consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus will shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove will disentitle him to grant of relief on the basis of negotiable instrument. It is true that in case where the respondent failed to discharge the initial onus of proof by showing the non-existence of consideration, the complainant would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. However, the Court may not insist upon the accused to disprove existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, require to be seen with doubt. The standard of proof in such cases evidently is preponderance of the probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused executed an Affidavit dated 30-6-2004 acknowledging the receipt of the said sum. P.W.1 has further stated that in repayment of the loan amount of Rs. 65,000/-, the accused issued to her cheque bearing No. 225843 dated 28-1-2005 for Rs. 50,000/- drawn on the Bank of Baroda, Ben-aulim Branch and another cheque bearing No. 225842 dated 28-6-2004 for Rs. 15,000/- also drawn on Bank of Baroda, Benaulim Branch. However, as mentioned herein above, the complaint is only in respect of the cheque of Rs. 50,000/-. 14. It is the case of the accused in defence, which can be seen from the suggestions which have been put to P.W.1, as also the statement of the accused under Section 313 of the Cr.P.C. and the deposition of the accused that the Complainant had agreed to purchase a shop bearing No. G-1 in the building constructed by the accused and that towards the part repayment of the purchase money paid by the Complainant to him, that he gave to the Complainant two blank cheques bearing Nos. 225842 and 225843 as he could not sell the said shop to the Complainant. The accused has further stated in his affidavit in evidence that the Complainant insisted upon the said Shop No. G-1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to note that the Complainant has stated in her cross-examination that she does not know whether the accused is financially sound. Therefore, the case of the Complainant that the accused was in a financial crisis is difficult to accept. Insofar as the financial capacity of the Complainant herself is concerned, the Complainant has stated in her cross-examination that she is not working and that she lives on the earnings of her son. In the said circumstances, it is difficult to believe that a person who does not have an independent income or who has no source of income can render financial assistance of a sum of Rs. 65,000/- to another person. The Complainant has further stated that she raised the said amount of Rs. 65,000/- by obtaining a loan of Rs. 50,000/-from her sister's son so that she could give the said amount to the accused, however, the said sister's son Messy Fernandes, is not examined by the Complainant. The evidence of the said witness would have been material in the context of the fact that the Complainant had no independent source of income. 16. There are various glaring inconsistencies and contradictions in the evidence of the Complainant. Significantly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Complainant that the amount of Rs. 65,000/- was given in two installments of Rs. 50,000/- and Rs. 15,000/-. It is the evidence of P.W.2 that the said amount of Rs. 65,000/- was given in one lump sum. It is further significant to note that P.W.2 has stated that besides the complainant and the accused, he was present when the said amount was given to the accused. It is not the case of the Complainant that the said P.W.2 was present when the money was advanced to the accused. In view of the contradictory evidence given by P.W.2, no credence can be attached to his evidence as regards any loan transaction. 18. The accused through the cross-examination of P.W.1 and P.W.2 has raised a probable defence as regards the consideration for the two cheques issued by him. He has, in my view, cast a doubt as regards the theory of the loan transaction propounded by the Complainant. In my view, the case of the accused that the said cheques were given as part repayment of the purchase money and that thereafter since the Complainant insisted upon shop No. G-1, which the accused represented, could be sold only if the said Angeles Pereira to whom the said shop was sold agreed to be a consenting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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