TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 1556
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....ainant extended hand loan of Rs. 80,000/- which the accused agreed to refund as and when demanded. 4. Towards refund of the loan the accused issued cheque dated 25-11-2003 bearing 071551 for Rs. 30,000/-, cheque dated 28-11-2003 bearing cheque 071554 for Rs. 9,500/-, cheque dated 25-12-2003 bearing 071552 for Rs. 20,000/- and cheque dated 25-1-2004 bearing 071553 for Rs. 20,000/-, all drawn on Bhandara Rural Bank, Sakoli Branch. The cheques were, however, handed over 3 apeal349.06 to the complainant at Buldana on 25-1-2004. 5. The four cheques were duly presented by the complainant for encashment, to the Akola District Central Co-operative Bank Limited. The four cheques were dishonoured on the ground of insufficient funds in the account of the accused. The complainant issued statutory notice dated 18-3-2004, the reply was received on 24-3-2004, however, the accused did not remit the amount covered by four cheques and hence, the complaint. 6. In the verification statement, the date of the return of memo is mentioned as 10-3-2004. 7. The complainant examined himself as C.W.1. The examination-in-chief is in consonance with the complaint. It is brought on record that the notice do....
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.... learned Magistrate to hold that the statutory presumptions under Sections 118 and 139 of the Act stand rebutted, although the learned Magistrate has disbelieved the defence of the accused that four cheques were issued as donation. 10. In Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441, the Hon'ble Apex Court, while holding that since the signature on the cheque is not disputed, the statutory presumption under Section 6 apeal349.06 139 of the Act is activated, which the accused could not rebut since the defence of lost cheque was not probable, observed thus : "27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is us....
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....ocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the 8 apeal349.06 non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, 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 ....
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....e Apex Court in M.S. Narayana Menon Alias Mani v. State of Kerala and another reported in (2006) 6 SCC 39 thus : "29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words 'proved' and 'disproved' have been defined in Section 3 of the Evidence Act (the interpretation clause) to mean: " 'Proved' - A fact is said to be proved when, after 10 apeal349.06 considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. 'Disproved' - A fact is said to be disproved when, after considering the matters before it the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist." 30. Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, t....
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....ot necessary for the defendant to disprove the existence of consideration by way of direct evidence. 32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. 38. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a 'fortiori' even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court. 45. Two adverse inferences in the instant case are liable to be drawn against the Second Respondent: (i) He deliberately has not produced his books of accounts. 12 apeal349.06 (ii) He had not been maintaining the statutory books of accounts and other registers in terms of the bye-laws of Cochin Stock Exchange. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding." 14. If the ....