9911796707
TMI Blog2020 (1) TMI 1702X X X X Extracts X X X X X X X X Extracts X X X X ..... According to complainant, respondent was in need of money and in the year 1997-1998 appellant gave a loan of various sums totalling to Rs. 4,50,000/-. According to complainant, accused undertook to repay this amount of Rs. 4,50,000/- by August 1998. Accused, however, did not repay the amount on time but in September 1998, complainant received a cheque for Rs. 4,50,000/- and the cheque was dated 26th November 1998. This cheque, when deposited, came to be dishonoured with the endorsement "not arranged for". A statutory notice was issued through complainant's advocate's letter dated 10th December 1998 to which a baseless reply was received and hence, the complaint came to be lodged. The Trial Court after considering the evidence came to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is nothing but an act of deception on the part of Sanjay Alizar and fraud being played upon him. It is also alleged that complainant and Sanjay Alizar are close friends living in the same house and therefore, they have colluded with each other and entered into a conspiracy to harass or take revenge against the accused. 5 Under Section 138 of the said Act where any cheque drawn by a person on an account maintained by him is drawn in favour of another person for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, the said person shall be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both. Expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant 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, Section 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. 7 Therefore, the standard of proof for rebutting the presumption is that of preponderance of probabilities and not beyond reasonable doubt. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry evidence like bank account statements for the year 1997 and 1998 to prove either withdrawal of the amount or giving the amount to accused. Complainant also admits that there is no documentary evidence to show that accused agreed to repay the amount at the end of August 1998. PW-1 also admits that there is no evidence in writing to show that she demanded the money several times from accused before the notice dated 10th December 1998. Complainant admits that she was not paying income tax for the year 1997 and 1998. Complainant also admits that the accused had lodged one complaint against her and Sanjay Alizar (PW-2) to the Commissioner of Police and also at Rabale Police Station and she was called in the Rabale Police Station in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmits that she was not even paying income tax. Admittedly, there are disputes between Sanjay Alizar and accused. PW-2 says in the examination in chief that all installments were given in his presence but in the cross examination PW-2 says he does not know in how many installments it was given. All these go to prove that the accused had raised a probable defence that the complainant has not proved that there was legally enforceable debt or liability. 12 The Apex Court in Chandrappa & Ors. V/s. State of Karnataka (2007) 4 SCC 415 in paragraph 42 has laid down the general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under : "42. From the above decisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 13 There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
