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TMI Blog2024 (5) TMI 1438X X X X Extracts X X X X X X X X Extracts X X X X ..... n be inferred from the materials on record and circumstantial evidence. There is a specific finding in the trial court judgment that Exhibit P2 cheque is materially altered by the complainant and that the same was originally issued for Rs.50,000/- and later altered and fabricated to one for Rs.7,50,000/- by the complainant and on that ground, the accused was acquitted in C.C and the said judgment has already become final. It is also pertinent to note that the trial court has also recorded a finding that the evidence of DW1 that Exhibit D1 is the receipt issued by the complainant to the accused for payment of Rs.3,50,000/- after the issuance of Exhibit P1 cheque and the said finding is also approved in the impugned judgment and considering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate, Vadakara in C.C. No. 176 of 2002 is set aside and the accused/second respondent was found not guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short NI Act ) and acquitted. 2. The appellant is the complainant. The case of the complainant is that while the complainant and the accused were working in Qatar, the accused borrowed an amount equivalent to Indian Rs.11,50,000/- from the complainant on 07.12.1999 and subsequently issued two cheques, one for Rs.4,00,000/- and other for Rs. 7,50,000/- and when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds and in spite of issuance of statutory notice, the accused failed to pay the cheque amount. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence under Section 138 of the NI Act in C.C. No. 176 of 2002. 7. Heard Sri. K. Ramkumar, the learned Senior counsel for the appellant, Sri. T.G. Rajendran, the learned counsel for the second respondent and Sri. Vipin Narayan, the learned Public Prosecutor and perused the records. 8. The learned counsel for the appellant argued that the issuance of the cheque and the signature are not disputed and the learned Sessions Judge wrongly considered the evidence relating to Exhibit P2 cheque in C.C No. 240 of 2002 to arrive at a finding that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant. 9. But, the learned counsel for the accused/second respondent pointed out that the trial court conducted joint tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 is the cheque originally issued by the accused for Rs.50,000/- and that the same was subsequently altered materially by the complainant to make it for Rs.7,50,000/- and it was on the basis of the said finding that the trial court found the accused not guilty of the offence under Section 138 of the NI Act in C.C. No. 240 of 2002 and acquitted him. 13. It is worthwhile to note that the complainant has not filed any appeal against the acquittal of the accused in C.C. No. 240 of 2002 and therefore, the said finding has become final. It is the specific case of the accused that after the issuance of Exhibit P1 cheque, he paid Rs.3,50,000/- to the complainant and Exhibit D1 is the receipt issued by the complainant in this regard. Even though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment must be endorsed on the cheque under Section 56 of the NI Act and the cheque cannot be presented for encashment without recording the part payment. It was further held that if such a cheque was presented for encashment without recording the part payment and if the same is dishonoured on presentation, the offence under Section 138 of the NI Act would not be attracted, since the cheque does not represent a legally enforceable debt at the time of encashment. 16. In Bharat Barrel Drum Mfg. Co. v. Amin Chand Payrelal [(1999) 3 SCC 35], the Honourable Supreme Court held that the non existence of consideration for the cheque can be proved by raising a probable defence and if it is shown that the existence of consideration was improbable or do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, S.139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come in the witness box to support his defence. 19. It is well settled that the standard of proof which is required from the accused to rebut the statutory presumption under Sections 118 and 139 of NI Act is preponderance of probabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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