TaxTMI 
TaxTMI 
2023 (10) TMI 219
X X X X Extracts X X X X
X X X X Extracts X X X X
....appeal in C.A.No.53 of 2017 and the same was disposed of by the learned Additional District and Sessions Judge, Theni at Periyakulam, by dismissing the appeal through its judgment dated 09.01.2019. Aggrieved by the said judgment, this present Criminal Revision Case is filed. 2. The case of the defacto complainant in trial Court is that the petitioner is known to the defacto complainant and he approached the defacto complainant for obtaining loan and on 15.02.2015, the petitioner borrowed a sum of Rs.4,00,000/- from the defacto complainant and assured to pay a same and for that, he issued a cheque bearing No.008808 Axis Bank, Kambam branch dated 16.03.2015. When the same was presented on 23.04.2015, the said cheque was returned unpaid as 'insufficient funds'. Thereafter, the defacto complainant sent a notice through his counsel on 24.04.2015. After receipt of the said notice, the petitioner/accused issued reply notice dated 30.04.2015 with false allegations. Thereafter, the complainant filed a complaint under Section 138 of Negotiable Instruments Act and the trial Court has taken cognizance for the offence under Sections 138 and 142 of Negotiable Instruments Act and issued ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isused misused the cheque and there is no legally debt. 6. The learned counsel appearing for the petitioner would contend that already the petitioner borrowed a sum of Rs.2,00,000/- from the defacto complainant as hand-loan and the same was settled in the presence of D.W.2 and thereafter, the some interest amount was remained unpaid and the defacto complainant retained the cheque along with unfilled signed blank papers and stamp papers, which were obtained by the complaint at the time of borrowal of said amount. But the trial Court failed to consider the same. Further the defacto complainant has not produced any statement of account to prove the alleged transaction. The defacto complainant himself filled the cheque and the same was admitted by him in the evidence. These discrepancies were not taken in to account by the Courts below and thereby, the judgment and conviction by the trial Court and confirmed by the appellate Court is liable to be set aside by allowing this revision. 7. To support his contention, he relied upon the following judgments:- (I) Tedhi Singh v. Narayan Dass Mahant reported in (2022) 6 Supreme Court Cases 735. (ii) John K.Abraham v. Simon C.Abraham and a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce dated 24.04.2021, after the receipt of notice, the petitioner issued reply dated 30.04.2015 his liability that already there was money transaction between them and he borrowed a sum of Rs.2,00,000/- and the same was paid in the presence of Ramamurthy. At the time of borrowal of aforesaid loan amount, the defacto complainant got signed blank cheques and Rs.50/- blank stamp papers with the signature of the petitioner/accused. Due to some unpaid interest, the aforesaid papers were not returned by the complainant to the petitioner/accused. Thereafter, the cheques were misused by the complainant and presented for the collection. 12. In order to prove the case of the defacto complainant, he examined P.W. 1 to P.W.3 and marked Exs.P1 to P6. P.W.1 deposed about the borrowal of amount by the petitioner/accused and presentation of cheque for collection and the cheque was returned as 'insufficient fund'. P.W.2 also deposed about the presentation of the cheque and the same was returned as 'insufficient funds'. P.W.3 also in his evidence stated about the issuance of cheque, presentation for collection and returned as 'insufficient funds'. The petitioner/accused also ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... alleged repayment of amount is in the year 2013. For more than two years, the petitioner/accused had not taken any steps to get back the unfilled documents. Even according to the petitioner at the time of borrowal of amount, the complainant obtained unfilled signed documents and gave a receipt Ex.D3, while so why any receipt was not obtained at the time of settlement of the said amount of Rs.2,00,000/- when the petitioner obtained receipt for handing over the documents to complainant i.e., Ex.D3 then without obtaining receipt for payment of Rs.2,00,000/- is unbelievable. Therefore, evidence of D.W.1 with regard borrowal of Rs.2,00,000/- execution of receipt of Ex.D3 and repayment of the said amount does not inspire confidence to this Court. Thereby the petitioner/accused failed to prove the execution of Ex.D3 and the repayment. 14. D.W.2 in his evidence stated that the petitioner/accused paid Rs. 2,00,000/- and there was a due of three months interest. Further D.W.2 has not stated anything about the alleged demand of return of the documents from the complainant and further since the evidence of D.W.1 does not inspire the confidence and then the evidence of D.W.2 is also creates s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist." (ii) John K. Abraham v. Simon C.Abraham and another reported in (2014) 2 Supreme Court Cases 236, wherein this Court in para no.9 and 10 held as follows:- "9. It has to be stated that in order to draw the presumption Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant. 10. Keeping the said statutory requirements in mind, when we examine the facts as admitted by the respondent-complainant, as rightly concluded by the learned trial Judge, the respondent was not even aware of the date when substantial amount of Rs.1,50,000/- was advanced by him to the appellant, that he was not sure as to who wrote the cheque, that he was not even aware when exactly and where exactly the transaction took plac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ence 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. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since 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 accused/defendant 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 persu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence. 19. The learned counsel appearing for the respondent relied upon the judgment of this Court in the case of V.Karthikeyan v. T.Manoharan reported in 2017 (2) MWN (Cr.) DCC 157 (Mad.), wherein this Court held as follows:- "Once the issuance of the cheque is established and account maintained by the accused also established, it is for the accused to dislodge the legal presumption eith....