TaxTMI 
TaxTMI 
2021 (3) TMI 904
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.... was working as a superintendent in Mahatma Jyotibha Phule Padavi Mahavidyalaya, an educational institution run by the accused. At that point of time, on the request of accused for hand loan for improvement of institution and business necessities, the complainant advanced loan of Rs. 7,00,000/- to him on 10.06.2009 by pooling out funds from her family members and relatives. The accused agreed to repay the loan within six months. After six months, the accused did not repay the loan. After repeated persuasion accused issued a cheque dated 15.03.2010 for Rs. 7,00,000/- to complainant, drawn on Canara Bank, Subramanya Nagar, Bangaluru. The complainant presented the cheque for encashment. The cheque returned unpaid with an endorsement 'account closed by drawer'. Immediately thereafter, the complainant issued a legal notice dated 27.03.2010 to accused to his both addresses. The accused issued reply notice. With these averments the complainant had filed complaint for the offence punishable under Section 138 of the N.I. Act. 05. The complainant herself examined as PW.1 and produced documents as per Exs.P.1 to 7. The accused denied the incriminating evidence while recording his sta....
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....d vs. Ramadas M. Shet reported in 2014 (5) Kar. L.J.283, wherein this Court has observed thus;- "15. Looking to the above said circumstances, I am of the opinion, the initial presumption under Sections 118 and 139 of Negotiable Instruments Act cannot be said to have been rebutted by the accused. Of course, the accused need not rebut the presumption beyond all reasonable doubt as it is incumbent upon the complainant to prove his case beyond reasonable doubt. Nevertheless, the accused has to place sufficient materials to convince the Court that his case is probabilised when it is compared with the case of the complainant. If the accused has failed to establish that his case is proved by means of preponderance of possibility that is to say, probabilities placed by the accused have the capacity to preponder over the case of the complainant then only such materials should be accepted. Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharged the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt." With these submissions, he prayed to allow the appeal. 11.....
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....t was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. 27. xxx xxx 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." 16. In the light of the above decision, the case on hand is to be ....
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....t is stated that he had lost the cheque books containing leaves bearing No.685251 to 685300. The news paper publication is produced at Ex.D.7 and Ex.D.8. The accused has issued Ex.P.7 reply dated 31.03.2010 to the legal notice issued by the complainant. A specific allegation was made against the complainant that cheque bearing No.685253 (Ex.P.1) was stolen by her. There is no suggestion in that regard in the cross-examination of PW.1. The accused has also not stated anything in his evidence in that regard. On 11.09.2009 memos issued by the accused to his employees inter-alia requesting them to return the cheque book in case same is traced. A copy of memo produced at Ex.D.2. In the said memo, it is stated that accused has lost cheque books and locker key in his office. If accused had really known that the complainant stolen the cheque book what made the accused to keep quiet without informing to the police as he had already lodged the complaint with regard to loss of cheque book, but, he has not done so. No documents were produced by the accused to show that even thereafter he has lodged the complaint against the complainant alleging theft. 18. DW.1 in the cross-examination categor....
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....odged. The very inconsistency of defence with regard to alleged theft or loss of cheque goes to show that there is no iota of truth in it. The said defence appears to have been taken only for the purpose of this case. There is no explanation by the accused as to how Ex.P.1 - cheque came to the hands of complainant that too with his admitted signature. It is not the case of the accused that he has lost signed cheque. The accused nowhere explained as to what made him to keep the signed cheque along with other cheques. It is also not the case of accused that he had kept cheque book with all the cheques signed. Accused not produced any document to show that he has intimated his banker about loss of entire cheque book. Therefore, conduct of the accused creates doubt with regard to version of loss of cheque book. Therefore, alleged loss of cheque book is not worth to be believed. There is no evidence on record to say that the complainant had access to cheque books and other bank documents of accused. No suggestions were made in the cross-examination of PW.1 that, complainant had access bank documents such cheque books belonging to the accused. In the cross-examination of PW.1 it is elici....
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.... presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 of N.I. Act for the discharge, in whole or in part, of any debt or other liability. The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not issued towards the discharge of any liability. 25. Presumptions are rules of evidence and do not conflict with the presumption of innocence, 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 non-existence of the presumed fact. The 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. 26. The Trial Court on appreciating the evidence on record has rightly held that the complainant has est....