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TMI Blog2024 (6) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... e from the son of the accused to the complainant and his partner as per Exhibit D1 agreement dated 25.03.2002 and the amount shown in Exhibit P1 cheque are the same and in that circumstance, there are no reason to disagree with the finding of the trial court that the evidence of PW1 that he advanced a loan of Rs.2,60,000/- to the accused 3 months prior to 07.10.2002, is not at all reliable and that the case put forward by the accused is more probable. The Honourable Supreme Court considered the nature of the standard of proof required for rebutting the presumption under Section 139 of the Negotiable Instruments Act in M.S.Narayana Menon v. State of Kerala [ 2006 (7) TMI 576 - SUPREME COURT] , and it was held that if some material is brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant is the complainant and complaint was filed on the allegation that the accused has obtained an amount of Rs.2,60,000/- from the complainant as loan and subsequently, after repeated demands, the accused issued cheque dated 07.10.2002 for Rs. 2,60,000/- to the complainant and when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of statutory notice, the accused failed to pay the cheque amount. 3. In the trial court, the complainant was examined as PW1 and Exhibits P1 to P5 were marked. From the side of the accused, DW1 examined and Exhibits D1 to D3 were marked. After considering the evidence on record and hearing both sides, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own in Exhibit P1 cheque, is not at all reliable and there is no valid grounds to interfere with the findings in the impugned judgment. 7. It is pertinent to note that the complainant has not disclosed the date on which he advanced the amount to the accused in the complaint or the chief affidavit. In cross examination, PW1 stated that he is conducting timber business and that he advanced the amount to the accused 3 months prior to the receipt of Exhibit P1 cheque dated 07.10.2002. In the beginning of the cross examination, PW1 categorically stated that he has not conducted any timber business with the accused and that he never had any transaction with the son of the accused. But, when the learned counsel for the accused confronted PW1 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the transactions as per Exhibits D1 and D2 and he admitted the said transactions only when he was confronted with Exhibits D1 and D2. In cross examination, PW1 denied issuance of a lawyers notice to the son of the accused on the basis of Exhibit D1 agreement, on 15.10.2002, through Adv. B. Karunakaran, when he was examined before the trial court on 23.06.2005 and subsequently when PW1 was recalled and examined on 22.07.2005, he admitted the issuance of Exhibit D3 notice dated 15.10.2002, through Adv. B. Karunakaran to K. S. Jabbar, the son of the accused in connection with Exhibit D1 agreement. The complainant, when examined as PW1, failed to give any satisfactory explanation for advancing a loan of Rs.2,60,000/- to the accused when amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbhajan Singh v. State of Punjab (AIR 1966 SC 97), the Honourable Supreme Court held that the onus on an accused person might well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities 13. The Honourable Supreme Court considered the nature of the standard of proof required for rebutting the presumption under Section 139 of the Negotiable Instruments Act in M.S.Narayana Menon v. State of Kerala (2006 (6) SCC 39), and it was held that if some material is brought on record consistent with the innocence of the accused, which may reasonably be true, even though it is not positively proved to be true, the accused would be entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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