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TMI Blog2024 (8) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... aised against him. The respondent, while proving the factum of handing over of the subject cheques to Ramesh, had been able to prove its defence through the testimony of DW3-Khilor Chandra on preponderance of probabilities and in the absence of the petitioner being able to provide any further evidence to substantiate his case, respondent No. 2 s acquittal is justified. The factum relating to the financial capacity of the petitioner, which weighed heavily upon the learned MM, also holds a crucial position in the acquittal of the respondent, since the same made the case of the petitioner highly improbable. Further, a decision of acquittal, strengthens the presumption of innocence in the favor of the accused. At the same time, the appellate co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on one or another pretext, the respondent kept delaying the repayment but eventually on 07.07.2021, she issued 4 cheques (hereinafter subject cheques ). The subject cheques, when presented for encashment, were returned dishonoured with the remark funds insufficient . A legal demand notice dated 07.09.2012 was issued to the respondent, and upon her failure to repay the amount under the subject cheques, the underlying complaint case came to be filed. 3. The learned MM, after considering the evidence on record as well as the arguments advanced by the parties, passed the impugned judgement wherein it was noted that the accused had managed to rebut the presumption under Section 139 read with Section 118 NI Act, by showing that the petitioner s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in due course of the cheque, as the case may be, must make a demand for the said money by giving a notice in writing to the drawer of the cheque within 30 days of receiving the information from the bank regarding the dishonour of the cheque. The third condition states that there should be a failure on the part of the drawer of cheque to make the payment of the amount under the cheque to the payee or the holder in due course, as the case may be, within 15 days of the receipt of the said notice. When all these three conditions are fulfilled, then only an offence under Section 138 of the NI Act can be said to have been committed by the person issuing the cheque [ Ref: MSR Leathers v. S. Palaniappan amp; Anr. (2013) 1 SCC 177, Charanjit Pal Ji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that the petitioner had deposed that his monthly income was about Rs. 20,000/- to 25,000/- in 2012, when the alleged loan was given, and thus, it was unfathomable as to how he was able to provide such a huge amount of Rs. 9,00,000/- as loan to the respondent. Although the petitioner was stated to be an income tax payee, however, he failed to bring on record any ITR which could support the factum of forwarding of such loan. While terming the conduct of the petitioner as illogical and irrational, it was observed that the financial capacity of the petitioner itself was in doubt and that his case did not hold water, when tested upon touchstone of standard of reasonable or prudent man. 9. After noting the aforesaid, the learned MM held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence. xxx 11. In light of the settled legal position and the entire factual situation as enumerated in the impugned judgement and reiterated hereinabove, this Court finds no illegality or infirmity in the judgement passed by the learned MM. While the petitioner had failed to substantiate his contentions rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact recorded by a court be held to be perverse has been dealt with and considered in para 20 of the aforesaid decision, which reads as under: ( Babu case [Babu v. State of Kerala, (2010) 9 SCC 189)] 20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence , or if the finding so outrageously defies logic as to suffer from the vice of irrationality. ( Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635], Excise Taxation Officer-cum-Assessing Authority v. Gopi Nath Sons [1992 Supp (2) SCC 312] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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