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TMI Blog2024 (6) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA ANR. [ 2006 (7) TMI 576 - SUPREME COURT] , 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 entitled to acquittal. It is well settled that if two views are possible, the appellate court shall not reverse a judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the complainant, the accused issued a cheque dated 14.08.2006 for Rs.1,55,000/- and subsequently, when the complainant presented the cheque for encashment, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of the 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 P6 were marked. From the side of the accused, DW1 was examined. 4. After considering the evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in proving that the cheque was issued by the accused to the complainant in discharge of a legally enforceable debt and that the accused has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er from any legal infirmity. 8. In the chief affidavit of PW1, the averments in the complaint are reiterated and the cheque dated 14.08.2006 is marked as Exhibit P1. In cross examination, PW1 stated that Sujatha Sasi, a close relative of the accused, is her neighbour. According to PW1, the accused is an LIC agent and she advanced the loan to the accused out of the sale consideration of her property sold during October, 2006. PW1 would say that she handed over the money to the accused on 14.07.2006. The evidence of PW1 is that the accused came to the house of the complainant to receive the money. PW1 admitted that her husband is conducting cases in Changanassery and Palakkad. But, she is not in a position to say anything regarding the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there existed no debt or liability at the time of issuance of the cheque and therefore, the question to be considered is whether the accused proved the non existence of debt or liability by a preponderance of probabilities by referring to the particular circumstance of the case, as held by the Honourable Supreme Court in Rajesh Jain v. Ajay Singh [2023 (6) KHC 391] 12. 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 probabilities and that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption, can be inferred from the materials on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the accused handed over the cheque while the complainant was in her shop and that no other person was present in the shop of the complainant at that time. The accused has also challenged the source of PW1 to advance such a huge amount to the accused and even though PW1 stated that she used the sale consideration of a property sold during October, 2006 for advancing the amount to the accused 30 days before the date of the cheque. I find no reason to disagree with the observation of the trial court that in the absence of any documentary evidence, the testimony of PW1 in this regard is not at all reliable. In this connection, it is worthwhile to note that the cheque is dated 14.08.2006 and the alleged source of the complainant is the sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any debt or other liability. (ii) The presumption under S.139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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