TaxTMI 
TaxTMI 
2021 (11) TMI 453
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....iefly, the facts of the case are that appellant filed a complaint under Section 138 of the Act alleging that the respondent No. 2 had taken loan from the appellant in the sum of Rs. 35,000/- and the appellant Bank sanctioned the said loan on 11.11.2005 and the respondent accused agreed to pay the instalments regularly and against the said loan the respondent submitted a cheque of Rs. 44,000/- No. 723213 dated 16.02.2012. It is alleged that when the appellant presented the cheque in the Bank, the same was dishonoured due to want of sufficient funds. Subsequently, the complainant sent a registered notice to the respondent. However, despite receiving the notice, the respondent did not make the payment and settle the account, therefore, he file....
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.... however, the appellant failed to produce any relevant document like Bank statement or loan sanction letter to prove that the cheque was issued against the loan taken by the respondent. A bare perusal of the impugned judgment clearly reveals that the learned trial court has given the cogent reasoning for acquitting the accused-respondent. It has been concluded by the learned court below that the appellant has failed to prove that the cheque in question was issued by the respondent against the loan sanctioned to him and therefore, if the cheque was dishonoured for want of sufficient funds, the same does not constitute an offence under Section 138 of the Act. Learned court further observed that the appellant Bank failed to produce any docu....
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....should guide the construction and interpretation of "reverse onus clauses" and the respondent/accused cannot be expected to discharge an unduly high standard of proof. Since the proceedings under Section 138 of the Negotiable Instruments Act are quasi-criminal in nature, it is sufficient enough for the accused to prove the "suggestive case or defence theory" up to the "level of preponderance of probability". Hon'ble Apex Court in the case of Kumar Exports vs. Sharma Carpets reported in AIR 2009 SC 1518 has held as under:- "11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and ....
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....he purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are....