2018 (3) TMI 1333

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.... proprietorship concern. According to the appellant, the respondent no. 1 was in the business of trading iron ore. 3. It was the material case that on account of their close relationship, the appellant had advanced to the respondent no. 1, an amount of Rs. 6,00,000/- as a hand loan, out of which Rs. 1,50,000/- was given by way of a Demand Draft and the remaining amount of Rs. 4,50,000/- was paid in cash. The appellant claims that the entire amount was out of the retiral dues received by the appellant. Admittedly, there is no document which evidences that the appellant had given Rs. 4,50,000/- to the respondent no. 1. It was contended that towards re-payment of the hand loan, the respondent no. 1, issued a cheque dated 19.05.2008, drawn on....

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....ndent no. 1, neither issued any reply nor led any evidence in defence. It is submitted that once, the signature on the cheque was not disputed, there is a presumption, which would arise under Section 118 read with Section 139 of the Act, which has not been rebutted by the respondent no. 1. He submits that thus, the learned Sessions Judge was in error in acquitting the respondent no. 1. On behalf of the appellant, reliance is placed on the decision of this Court, in the case of Krishna P. Morajkar Vs. Joe Domnic Ferrao & Another, 2014(2) Bom.C.R. (Cri) 738 and Yavatmal District Mahesh Urban Credit Co-op. Society Ltd. Vs. Narayanrao Ukandrao Paikrao, 2011 All M.R. (Cri.) 2769. Except this, there are no other contentions raised. 7. I have car....

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....ion is a rebuttable presumption. The accused can rebut the presumption on preponderance of probability, which can be done by virtue of cross examination of the complainant's witness or at the time of the statement under Section 313 of Cr.P.C. or by leading defence evidence. The question whether, the presumption stands rebutted or not, would depend upon facts and circumstances of each case. Here is a case where the appellant has failed to give any particulars as to the date and time, when he advanced the amount of Rs. 4,50,000/-, which he had paid in cash. There is no writing obtained from the respondent no. 1 and it is also not shown that the said amount was reflected in the Income Tax Returns of the firm, in as much as, the complaint w....