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TMI Blog2023 (11) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s shop and stole the cheques. Instead of complaining to the Police, DW2 issued Ext D1 lawyer notice to Anilkumar threatening to initiate proceedings. But no action is seen taken. It is making use of one of the stolen cheques, the complainant launched the prosecution. Therefore, there is no legally enforceable debt payable by the revision petitioner/accused to the first respondent/complainant. The courts below, after appreciating the materials on record, have concurrently concluded that the defence set up by the accused is highly improbable, especially taking into account the fact that he was a Police officer. If at all his cheque was stolen, he would have certainly initiated criminal proceedings. Instead, he remained silent and made h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , got dishonoured by Ext.P2 memorandum due to 'insufficient funds' in the bank account of the accused. Despite issuing Ext P3 statutory lawyer notice to the accused, he failed to pay the demanded amount. Instead, the accused issued Ext P6 reply notice. Hence, the accused committed the above offence. 3. The learned Magistrate took cognizance of the offence. The accused denied the substance of accusations made against him. In the Trial, the complainant examined himself as PW1 and Exts.P1 to P6 were marked in evidence. The accused denied the incriminating circumstances appearing in the evidence against him in the questioning under Section 313 of the Code of Criminal Procedure ( in short, Code). The accused examined DWs 1 to 4, inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments passed by the courts below? 10. The revisional jurisdiction of this Court is to be sparingly exercised in the cases of exceptional rarity, when there is patent error, manifest illegality and total misreading of the records. 11. The case of the complainant is that the accused had borrowed a sum of Rs. 3,00,000/-from him and had issued Ext P1 cheque in discharge of the said liability. The cheque, on presentation to the bank for payment, got returned due to 'insufficiency of funds' in the account of the accused. Despite making a demand for repayment of the money, the accused failed to pay the amount. Hence, the accused committed the above offence. 12. The accused sent Ext P6 reply notice and also got himself and three ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , negotiated or transferred for consideration; 139. Presumption in favour of holder. -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. A three-Judge Bench of the Hon'ble Supreme Court in Rangappa v. Sri. Mohan [2010 KHC 4325], while dealing with Section 139 of the N.I. Act has conceptualised the doctrine of 'reverse onus', by holding thus: 18. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by S.139 of the Act does indeed include the existence of a legally enforceable debt or liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. 16. Recently, a three-Judge Bench of the Hon'ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gave signed blank cheques to DW2, who had business transactions with Anilkumar. The said Anilkumar allegedly trespassed into DW2's shop and stole the cheques. Instead of complaining to the Police, DW2 issued Ext D1 lawyer notice to Anilkumar threatening to initiate proceedings. But no action is seen taken. It is making use of one of the stolen cheques, the complainant launched the prosecution. Therefore, there is no legally enforceable debt payable by the revision petitioner/accused to the first respondent/complainant. 19. The courts below, after appreciating the materials on record, have concurrently concluded that the defence set up by the accused is highly improbable, especially taking into account the fact that he was a Police ..... X X X X Extracts X X X X X X X X Extracts X X X X
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