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TMI Blog2023 (5) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said saved amount, he has given loan to accused. The material evidence that has been brought on record during the cross examination of PW.1 is sufficient to create reasonable suspicion about the financial capacity of complainant to lend the money. In the present case, accused herself examined as RW.1, for the reasons best know to her did not offer herself for cross examination. Therefore, examination in chief of RW.1 cannot be looked into. The Trial Court has rightly appreciated the material evidence placed on record and arrived at just and proper conclusion in holding that rebuttal evidence placed on record by accused during the cross examination of PW.1 would be sufficient to displace the initial presumption available in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith an endorsement as not claimed . Accused has not paid the amount covered under the cheque. Therefore, complaint came to be filed on 29.5.2013 for seeking appropriate legal action against the accused. 4. In response to the summons, accused appeared through counsel and contested the matter. Complainant to prove his case relied on the evidence of PW.1 and documents Exs.P.1 to 6. On closure of the complainant evidence, statement of accused under Section 313 of Cr.P.C. came to be recorded. Accused denied all the incriminating material evidence appearing against him and claims false is filed. 5. On the other hand, accused examined herself as RW.1, but she was not offered for cross examination. The Trial Court after appreciating the evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the oral and documentary evidence, it would go to show that accused in the month of January 2013, accused borrowed Rs.2,00,000/- from the complainant to meet his family necessities. Accused to discharge the said debt, issued cheque bearing No.070787 drawn on Syndicate Bank, Hospeth for Rs.2,00,000/- dated 19.4.2013-Ex.P.1. The said cheque on instruction of accused, was presented for collection after 19.4.2013 through banker of complainant-State Bank of Mysore, Main Bazar branch, Hospet. The said cheque was dishonoured for want of sufficient funds in the account of accused vide bank endorsement-Ex.P.2. Complainant issued demand notice dated 2.5.2013-Ex.P.3 and Ex.P.4- postal receipt for having sent the notice through RPAD. The notice sent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden. In view of the principles enunciated in this decision, it is evident that accused to probabalise his defence can rely on his own evidence or also can rely on materials submitted by complainant. It is not necessary for the accused to step into the witness box to probabalise his defence. 12. In the present case, accused though got herself examined as RW.1, but did not offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gajanan, wherein it has been observed and held that : In a case under Section 138 of N.I. Act if some material is brought on record by the accused with consistent with innocence of the accused, which appears true and reasonable and accepted in rebuttal to the statutory presumption and the material brought on record by the accused passes the test of preponderance of probability, the case of complainant may be rendered doubtful and then on the basis of probabilities of defence, the accused is entitled for an order of acquittal. The same principle of law has been enunciated by the Hon ble Apex Court in the above referred Basaligappa case. 15. PW.1-complainant was subjected to lengthy cross examination regarding financial capacity of complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The material evidence that has been brought on record during the cross examination of PW.1 is sufficient to create reasonable suspicion about the financial capacity of complainant to lend the money. In the present case, accused herself examined as RW.1, for the reasons best know to her did not offer herself for cross examination. Therefore, examination in chief of RW.1 cannot be looked into. The Trial Court has rightly appreciated the material evidence placed on record and arrived at just and proper conclusion in holding that rebuttal evidence placed on record by accused during the cross examination of PW.1 would be sufficient to displace the initial presumption available in favour of complainant in terms of Sections 118 and 139 of N.I. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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