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TMI Blog2024 (12) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... that the consideration does not exist. The necessary conclusion is that for rebutting such a presumption, what is needed is to raise a probable defence. All the circumstances, including the evidence adduced on behalf of the complainant, could be relied upon. The rebuttal does not have to be conclusively established, but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of responsibility being that of the prudent man. The admitted case of the complainant is that his wife and the accused had a financial transaction in respect of an immovable property. But, his wife came to the box and denied the entire transactions. She even denied to have acquaintance with the accused - The accused has brought in throwing circumstances that make the case of the complainant suspicious. Unless the holder of the instrument removes such suspicion by tendering a satisfactory explanation, no conviction is legally permissible by invoking the statutory presumption. The accused has successfully discharged his initial onus of proof showing that the existence of consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard the learned Senior Counsel appearing for the complainant. 5. The learned Senior Counsel submitted that the judgment of acquittal passed by the trial Court is illegal and unsustainable in law. The learned Senior Counsel, relying on Rangappa v. Mohan [(2010) 11 SCC 441 : 2010 (2) KLT 682 (SC)] and Vasanthakumar v. Vijayakumari [(2015) 8 SCC 378 : (2) KLT SN 99 (C.No.117) SC], submitted that as the complainant established execution of Ext.P1 cheque, the mandatory presumption as provided under Section 139 of the Negotiable Instruments Act has been drawn in his favour. 6. The case of the complainant is as follows : - The complainant paid Rs.8,00,000/- to the accused as advance for purchasing 50 cents of property belonging to him. Two agreements were executed in this connection between the complainant s wife and the accused. Contrary to the agreements, the accused sold the property to a third party. Later, mediators intervened and the accused agreed to repay the amount. In discharge of the liability, he issued Ext.P1 cheque for Rs.8,00,000/- drawn on the Naloornadu Service Co operative Bank. The complainant presented the cheque in the drawer s bank. But, it was returned unpaid due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability (Vide: Uttam Ram v. Devinder Singh Hudan and Another [2019 (5) KHC 179 : (2019) 10 SCC 287]. 11. In Vasanthakumar (supra) the Supreme Court held that since once the cheque as well as the signature are accepted by the accused, the presumption under Section 139 of the NI Act would operate and the burden is on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. In Rangappa (Supra) the Apex Court held that presumption under Section 139 of the N.I. Act does include the existence of a legally enforceable debt or liability. Therefore, I am of the view that the complainant has established the execution of Ext.P1 cheque by the accused. 12. Now, the crucial question that arises for consideration is whether the accused has succeeded in rebutting the presumption drawn in favour of the complainant. A presumption is an inference to the existence of a fact not actually known arising from its connection with another which is known. A presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used 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. In V. D. Jhingan v. State of Uttar Pradesh (AIR 1966 SC 1762), the Supreme Court held that it is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. In Rajaram S/o.Sriramulu Naidu (Since Deceased) through L.Rs. v. Maruthachalam (Since Deceased) through L.Rs. [2023 SCC OnLine SC 48 : (2023 LiveLaw (SC) 46), the Supreme Court held that the standard of proof for rebutting the presumption is that of preponderance of probabilities, and it is open for the accused to rely on the evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. 15. The principle that emerges from the above discussion is that the rebuttal does not have to be conclusively established, but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant could not be repaid and the accused requested extended period for repayment till 30.12.2011. By that time, the complainant and his wife wanted to execute a new agreement stating that he received Rs.4,00,000/- from the wife of the complainant. The learned counsel for the complainant submitted that when the accused takes the plea that he had discharged the liability towards the wife of the complainant, he has to prove it by way of cogent evidence. 18. The case of the accused is that he never had any financial transactions with the complainant. He only admitted a transaction between himself and the wife of the complainant. His further case is that in the financial dispute, a mediator by name A. K. Ramakrishnan intervened and the parties entered into an agreement in which the accused agreed to pay Rs.1,90,000/-. He had sought time till the landed property was disposed of. In the mediation he was required to give a blank cheque as an assurance for repayment of the amount of Rs.1,90,000/-. Sri.A.K.Ramakrishnan, who gave evidence as DW2, supported the case of the accused. 19. The complainant s wife was examined as DW4. She deposed that she has no acquaintance with the accused. She fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc, are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him 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, the accused having secured his acquittal, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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