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2021 (3) TMI 569
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.... Act, 1881, hereinafter referred to as the Act. According to the appellant, in consideration of a sum of Rs. 1,75,000/- borrowed from him by the 1st respondent, a cheque for Rs. 1,75,000/- dated 25.06.2009 drawn on Bayar Service Co-operative Bank, Bayar was issued to him. He presented the cheque for collection, but it was returned dishonoured on 05.10.2009 due to insufficiency of funds. The matter was duly intimated to the 1st respondent through a lawyer notice, which was served on him. But the amount was not paid nor a reply was sent and, aggrieved by the same, he moved the complaint. On appearance on summons, the 1st respondent pleaded not guilty. 2. The complainant gave evidence as PW1 and Exts.P1 to P4 were marked. On closing the evide....
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.... favour of the appellant. After having admitted the issuance of the Ext.P1 cheque he cannot be heard to say that he had borrowed only Rs. 30,000/- from the appellant. In this connection, the learned counsel placed reliance on the decision reported in Bir Singh v. Mukesh Kumar [AIR 2019 SC 2446]. Regarding the contention that the appellant had no financial capability to lend so much money, the learned counsel placed reliance on an unreported decision of the Karnataka High Court in Crl.A. No.2109/2017 and also in Rohitbhai Jivanlal Patel v. State of Gujarat and another [AIR 2019 SC 1876]. The counsel concluded that the appellant is financially sound enough to lend that much money; that the presumption is in his favour and thus, the trial cour....
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....al testimony and documents marked as Exts.P1 to P4. No evidence was tendered by the 1st respondent. The case of the 1st respondent is that the Ext.P1 cheque was issued as a signed blank cheque, in consideration of Rs. 30,000/- borrowed by him from the appellant, that the appellant has no financial capacity to arrange an amount of Rs. 1,75,000/-. So the 1st respondent wanted to convince the court that the Ext.P1 cheque was concocted by incorporating a much higher amount with the clear intention of extracting that much money from the 1st respondent. 8. The complaint was laid on 18.02.2009 before the Chief Judicial Magistrate. Later the case was made over to the trial court where the evidence was taken. From the oral testimony of the appellan....
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.... the drawer cannot challenge the capacity of the lender to pay the sum. In the decision reported in Basalingappa, quoted supra, the Hon'ble Supreme Court has summed up the legal principles thus:- "23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:- (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of prepondera....
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....t or liability. Then the burden is on the accused, in view of the statutory presumption, to rebut the presumption by leading an adequate and satisfactory evidence to substantiate his contention in defence to the prosecution. Although it is not necessary for the accused to enter the witness box, the burden of proof is required to be discharged by adducing satisfactory evidence to prove that the cheque in question was not issued for discharge of any legally enforceable debt. Merely for the reason that he did not adduce any evidence to prove a negative fact, no adverse inference can be drawn against him. The degree of proof expected from the accused is not as rigorous as that of the complainant. He can discharge his onus by making dents in the....