TaxTMI 
TaxTMI 
2022 (1) TMI 53
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....he cheque for collection through his bank ICICI, Puducherry and the same was returned on 30.01.2007 and on 06.02.2007 for the reason 'insufficient funds'. After having issued the statutory notice and complying the legal mandates, the complainant has filed the private complaint against the accused for the offence under Section 138 of Negotiable Instruments Act. 3. After the case was taken on file and after completing the legal formalities, on the side of the complainant, he examined himself as PW.1 and marked 9 exhibits as Ex.P.1 to Ex.P9. On the side of the accused, no witness was examined and no documents were marked. 4. At the conclusion of the trial and on consideration of the available material on record, the learned trial Judge had found the accused guilty for the offence under Section 138 of N.I.Act, convicted and sentenced the accused to undergo Simple Imprisonment for 2 years and ordered to pay a sum of Rs. 19,00,000/- as compensation. Aggrieved over that the accused had preferred the appeal before the Sessions Court, Puducherry in C.A.No.40 of 2014. The appellate Court dismissed the appeal by confirming the judgment of the trial Court. Now this criminal revis....
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.... of the complainant namely Balakrishnan, who is working in PRTC Depot and he had already lent a sum of Rs. 1,00,000/- to him on daily interest basis. He further submitted that the said loan was repaid, and 5 cheques issued to him as security had been misused for the purpose of filing this case. The learned trial Judge has convinced himself to take the presumption available under Section 139 of Negotiable Instruments Act and convicted the accused. The execution of the cheques by the accused is not disputed. Once the execution is admitted as per Section 139 of N.I.Act., it has to be presumed that the cheque was issued only and for discharging a legally enforceable debt. No doubt, the above presumption is available to the respondent/complainant, since the accused did not deny the execution of the cheques. But the initial presumption can become conclusive only, if it is not rebutted by the defence. The specific stand of defence is that the complainant did not have sufficient means to lend a huge sum of Rs. 19,00,000/-. Even according to his submissions, he did not have that much financial capacity. PW.1 has admitted that Balakrishnan is his uncle, though he denied about the transaction....
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....ce of a consideration by raising a probable defence. In para 12, the following has been laid down : (SCC pp. 50-51) "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon his failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case includi....
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.... been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression "shall presume" cannot be held to be synonymous with "conclusive proof".' " 15. It was noted in M.S. Narayana Menon case [M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30] , that the expression "shall presume" cannot be held to be synonymous with conclusive proof. Referring to definition of words "proved" and "disproved" under Section 3 of the Evidence Act, 1872 the following was laid down in para 30 : (SCC p. 50) "30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the suppositi....