TaxTMI 
TaxTMI 
2022 (11) TMI 488
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....t admitted his liability and in discharge thereof, he issued a cheque in dispute for an amount of Rs.14 lakhs. On presentation, cheque was dishonoured for the reason 'funds insufficient' vide written memo dated 15.10.2013. The complainant served statutory demand notice upon the respondent dated 08.11.2013 through registered A.D. After respondent-accused failed to respond to the same and did not meet the demand raised by the complainant, the complaint in question was preferred. 3. Trial Court after analysing the evidence found that the complainant had successfully discharged the initial burden. The signatures of the accused on cheque leaf were not disputed and thus it held respondent-accused guilty of offence punishable under Section 138 of the N.I. Act. Pertinent it is to note here that the only defence discernible from the cross-examination of the complainant raised by the accused at the stage of trial is that the cheque was handed over to the complainant as a security while availaing loan of Rs.1 lakh. Accused tried to prove that the said loan of Rs.1 lakh was paid back, however somehow the cheque in question remained in possession of the complainant. The same is being....
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....sed is victim of fraud, then he must have filed any complaint before court of law or before the police but that has not been done which shows that this plea has been taken just to avoid the liability arising out of this case. It is also settled preposition of law that fraud is required to be proved like any other guilt in a criminal case and mere allegations of fraud does not discharge the onus having placed upon such a person who alleges so. Such a law was laid down by our own Hon'ble High Court in Satwinder Singh Va. Swaran Singh another 2008 (4) RCR (Civil) 434 (P&H). Perusal of the file shows that no such protest has ever been lodged till date. If that was the case the accused could have got the payment of the cheque in question stopped by his bankers, which has not been done in the present case. Hence, these arguments of defence counsel are not acceptable. 19. The argument that the complainant had no source of funds to advance the amount of Rs.14 Lacs is also not convincing as the complainant in his cross-examination has clearly stated that the source of funds were compensation of land acquisition. Complainant has specifically stated that he had withdrawn the said....
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....btor to execute some document evidencing such transaction. Absence of any such documentary evidence would create great amount of doubt about the genuineness of the transaction. Section 269 SS of the Income Tax Act, 1961 insists that all transactions involving Rs. 20,000 and above, should be through 'account payee cheques'. It is not the case of the complainant that the loan amount was paid by way of account payee cheque and thus there is a violation of Section 269-SS of the Income Tax Act. There is no material on record to show that there was any agreement for payment of interest. If the complainant had lent Rs. 50,000/- by borrowing the same from other sources, under normal circumstances, there would have been certainly an agreement for payment of interest between the accused and the complainant. There is absolutely no evidence on record in this regard. Absence of any such agreement for payment of interest between them also would create great amount of doubt about the transaction. All these circumstances, as rightly pointed out by the learned Magistrate are sufficient to hold that the defence of the accused is highly probable and that the accused has r....
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....e the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof. 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." 7. Thus in order to rebut the statutory presumption accused is required to ....