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TMI Blog2015 (6) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... accused. The burden on the accused to rebut the presumption is only to the extent of preponderance of possibilities , whereas the complainant has to prove its case beyond reasonable doubt. It has also repeatedly been observed that the accused can rely on the evidence brought on record by the complainant to rebut the presumption, and it is not necessary that he has to lead separate/direct evidence. However, in the present case, the accused-respondent has not been able to rebut the presumption of the cheque having been issued for consideration of the amount reflected in the cheque, in the face of the pronotes. The accused is obliged to set up a probable defence. The defence cannot be only a possible defence. It cannot be premised on the mere ipse dixit of the accused. There should be some credible material or circumstance available on record which should lead the Court to conclude that the defence/explanation for issuance of the dishonoured cheque is a probable one. For the reasons aforesaid, the findings and conclusions drawn by the learned MM on facts is palpably wrong, and it is also based on an erroneous view of the law. The impugned judgment is set aside. The accused is convicte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, only till the month of August, 2012. 4. In the first week of September, 2012, the complainant requested the accused to return the entire amount given to him as it was required for the marriage of his son in November, 2012. The accused could not arrange the amount immediately. However, he gave a post dated cheque of Rs. 8.50 lacs bearing no. 81582 dated 17.09.2012 drawn on Canara Bank, Rajouri Garden, New Delhi with an assurance of its encashment, as by that time, he shall be able to arrange the funds in his account. When the cheque was to be presented on due date, the accused requested the complainant not to present the same as he could not arrange the funds and requested the complainant to present the cheque in the first week of November, 2012. On 07.11.2012, the complainant presented the cheque in his account maintained with Indian Overseas Bank, Dwarka. The said cheque was returned on 12.11.2012 vide bank memo dated 09.11.2012 with the remarks insufficient funds . The complainant approached the accused and apprised him about the dishonoured cheque and requested him to immediately arrange the funds for his urgent needs. The accused, however, returned only Rs. 50,000/- to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain other loans and advances and on other deposit/ loan of one Mrs. Roopa Sharma are shown. This creates a doubt in the veracity of the version of the complainant. Further the promissory notes Ex. CW1/6 and Ex. CW1/7 have been filled in different handwriting and ink than the signatures of the accused. This also creates a doubt in the complainant‟s story. In this regard, judgment titled as Vipul Kumar Gupta vs. Vipin Gupta, 2012 (4) JCC 248 (DELHI) can be relied upon wherein on a similar question before Hon‟ble High Court, Hon‟ble High Court upheld the order of acquittal passed by the trial court. 7. The first submission of learned counsel for the appellant is that the respondent claimed that a loan of Rs. 50,000/- was taken from the appellant and repaid, but the cheque given as security was not returned. However, no such suggestion was put to the appellant in the cross examination by the accused. Learned counsel submits that the respondent did not reply to the demand notice denying his liability. Learned counsel submits that the balance sheet of the appellant, as on 31.03.2013, shows that an amount of Rs. 6.75 lacs was disbursed under the head Loans and advances . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) The trial court's conclusion with regard to the facts is palpably wrong; ii) The trial court's decision was based on an erroneous view of law; iii) The trial court's judgment is likely to result in grave miscarriage of justice ; iv) The entire approach of the trial court in dealing with the evidence was patently illegal; v) The trial court's judgment was manifestly unjust and unreasonable; vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc. vii) This list is intended to be illustrative, not exhaustive. 11. Therefore, the impugned judgment has to be tested in the aforesaid light. 12. It is an admitted case that the signatures on the pronote dated 15.05.2012 (Ex. CW-1/6) and pronote dated 20.07.2012 (Ex. CW-1/7) are those of the respondent. Further, the signature on the cheque dated 17.09.2012 (Ex. CW-1/1) has been admitted by the accused to be his own. Thus, non-production of the witness by the complainant is not material. 13. It is also not in dispute that the respondent used to borrow money from the appellant on earlier occasions. The respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was that an amount of Rs. 50,000/- was borrowed from the complainant, which was repaid. However, the wife of the accused, Seema (DW-1), in her examination in chief, inter alia, stated that My husband who is the accused in the present case, has taken money from the complainant. I was told that an amount of Rs. 30,000/- in three equal installments of Rs. 10,000/- was returned to the complainant by my husband. The said amount was paid in my presence (Emphasis supplied). The first part of this statement, extracted in bold letters, is mere hearsay, and cannot be accepted. The later part of her quoted statement only shows that she was witness to the act of return of some amount, but she was not personally aware of the actual amount returned. Thus, the testimony of DW-1 is unbelievable. The accused, pertinently, did not himself appear as his witness when it is his case that the loan was taken by him, and returned by him. The accused shied away from facing the cross-examination by the appellant a factor which discredits his defence. 16. With regard to the source of the money, the appellant in his cross examination has stated that when the accused-respondent urgently needed money, he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that blank signed pronotes/cheque was delivered by the accused cannot be taken advantage of by the accused. 20. It is settled law that the burden to rebut the presumption under Section 139 NI Act is on the accused. The burden on the accused to rebut the presumption is only to the extent of preponderance of possibilities , whereas the complainant has to prove its case beyond reasonable doubt. It has also repeatedly been observed that the accused can rely on the evidence brought on record by the complainant to rebut the presumption, and it is not necessary that he has to lead separate/direct evidence. However, in the present case, the accused-respondent has not been able to rebut the presumption of the cheque having been issued for consideration of the amount reflected in the cheque, in the face of the pronotes Ex.CW-1/6 and Ex.CW-1/7 21. The finding that, as the amount of loan disbursed to the respondent was not shown in the balance sheet and ITR, the appellant could not be said to have proved its case beyond reasonable doubt, is also erroneous. In this regard, reference may be placed on the decisions of the Bombay High Court in: i) Deelip Apte vs. Nilesh P. Salgaonkar Anr., 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts Act, and legislating that such amounts becomes irrecoverable. At the cost of repetition, for saying that an amount not disclosed in income tax returns cannot be legally recoverable liability, some provisions of law to that effect would have to be shown. Such provision was not noticed by me and even the learned Counsel for the respondent could not show any such provision to me. (Emphasis Supplied) 22. Similarly, in the present case, the loan given by the petitioner was a friendly loan for the business of the accused-respondent, in the background that they had known each other for about 40 years. It was payable in a short period of time. Thus, I do not find any merit in the submission of the respondent that since the name of the accused-respondent has not been shown in the balance sheet, or the amount had not been disclosed in the ITR, it stands established that the loan was not disbursed by the appellant. 23. The decision in of Vijay (supra) does not advance the case of the respondent, as in the present case the complainant-appellant has produced the two pronotes dated 15.05.2012 and 20.07.2012 to support the fact that the loan was disbursed by him to the accused-respondent. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and acquitted the accused on the premise that the complainant had failed to prove the sources from where the alleged loan amount was arranged. This Court concurred with the judgment of acquittal passed by the First Appellate Court. Paragraph 15 of the said judgment reads as follows: 15. It is in the aforesaid context that the learned ASJ had concluded that the petitioner/complainant had failed to prove his case against the respondent No.2 beyond reasonable doubt and therefore respondent No.2 ought to have been acquitted for the offence under Section 138 of the Negotiable Instruments Act. This Court is inclined to concur with the decision of the appellate court of overturning the judgment of the learned MM. The said decision is based on a logical appreciation of the evidence placed on record. In fact, the learned trial court had erred in concluding that the respondent No.2 had not been able to discharge the initial onus placed upon him to show the existence of a reasonably probable defence in his favour. On the contrary, the records summoned by the respondent No.2 from his bank and the deposition of DW-2 (clerk from the Bank) were themselves sufficient to hold that the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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