TaxTMI 
TaxTMI 
2024 (6) TMI 380
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....was found not guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act') and acquitted. 2. The appellant is the complainant. The case of the complainant firm is that a loan of Rs.70,000/- was advanced by the complainant to the accused in furtherance of a hire purchase agreement on 07.03.2001 and towards part payment of the liability, the accused issued cheque dated 25.09.2003 for Rs. 35960/- and when the complainant presented the cheque for collection, the same was dishonoured as per memo dated 13.10.2003 with the endorsement 'refer to drawer' and in spite of issuance of statutory notice, the accused failed to pay the cheque amount. 3. In the trial court, from the side of the complainant, PW1 was ....
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.... the cheque and the signature are not disputed and the finding in the impugned judgment that the complainant has failed to prove the existence of a legally recoverable debt from the side of the accused to the complainant, is erroneous and against the evidence on record. 7. But, the learned counsel for the first respondent/accused argued that PW1, the power of attorney holder of the complainant has clearly admitted in cross examination that Exhibit D1 is a statutory notice issued from the side of the complainant to the accused in connection with the dishonour of another cheque relating to the same transaction and PW1 also admitted that he is not in a position to say under what circumstance the complainant issued Exhibit D1 notice to the acc....
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....greement, dated 07.03.2001. Even though PW1 has initially stated in cross examination that the accused has not issued any cheque to the complainant prior to Exhibit P2 cheque and that the complainant has not initiated any legal action against the accused before this case, he subsequently admitted that Exhibit D1 notice is issued for and on behalf of the complainant to the accused. However, PW1 would say that he is not in a position to say under what circumstance, the complainant issued Exhibit D1 notice to the accused and he is also not in a position to depose regarding the entire matters connected with the transaction between the accused and the complainant. The evidence of PW1 in cross examination shows that the complainant is maintaining....
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....f NI Act is preponderance of probabilities and that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence. 12. In Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [(1999) 3 SCC 35], the Honourable Supreme Court held that the non existence of consideration for the cheque can be proved by raising a probable defence and if it is shown that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant. 13. In Harbhajan Singh v. State of Punjab (AIR 1966 SC 97), the Honourable Supreme Court held that the onus on an accused p....
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....ot only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, S.139 imposed an evidentiary burden and not a persuasive burden. 16. A perusal of the complaint and the evidence of PW1 in chief examination clearly shows that the nature of the transaction alleged in the complaint and the chief affidavit of PW1 does not tally with the nature of the transaction mentioned in Exhibit P7, hire purchase agreement. PW1 has categorically admitted in cross examination that he is not in a position to depose regarding the entire matters in connection with the transactions between the accused ....