TaxTMI 
TaxTMI 
2025 (11) TMI 589
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....nd subsequently when the complainant demanded back the amount, the accused issued a cheque dated 10-05-2004 for Rs. 75,000/- to the complainant. When the complainant presented the cheque for collection, the same was dishonoured as per memo dated 24-05-2004 on two grounds. (i) insufficient funds (ii) alteration in date require drawer confirmation. 3. Thereafter, the complainant issued statutory notice and in spite of notice, the accused failed to pay the cheque amount to the complainant. 4. Before the trial court, from the side of the complainant, PW1 was examined and Exhibits P1 to P4 were marked and from the side of the accused, DWs 1 and 2 were examined and Exhibits D1 to D3 were marked. 5. The trial court found the accused guilt....
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....me Court in Bir Singh v. Mukesh Kumar] 2019 (1) KLT 598 (SC)] to point out that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. The learned counsel representing the appellant also cited the decision of this Court in Bhaskaran Chandrasekharan v. Radhakrishnan [1998 KHC 162] and argued that once there is admission of issuance of a cheque and even if there is insertion of a date on an undated cheque, the same cannot be a material alteration and it is to be presumed that the drawee has impliedly consented to put the date on the cheque. 10. The learned counsel for the accused/first....
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....that there is a correction in the date written in the cheque. When the learned counsel for the accused made a specific suggestion to PW1 that he obtained Ext.P1 cheque from the accused as security at the time of advancing the chitty amount, he has not denied the same and instead stated that the same is not known to him. PW1 denied the suggestion that in spite of payment of the chitty amount by the accused, he has not returned the cheque. 12. The accused is examined as DW2 and he deposed that the complainant was conducting a chitty during the period 1998-1999 and when he approached the complainant for receiving the chitty amount, the complainant demanded a blank cheque as security and accordingly, he entrusted a blank cheque and even afte....
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....rials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not 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, Section 139 imposed an evidentiary burden and not a persuasive burden." 15. In APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Others [2020 (1) KHC 957 = 2020 (1) KLD 313], it was held that whenever the accused questioned the financial capacity of the complainant in support of his probable defence despite the presumption under Section 139 onus shifts agai....
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....e complainant demanded a blank signed cheque as security and accordingly, he entrusted a blank signed cheque to the complainant and in spite of payment of all the chitty installments, the complainant has not returned the cheque by saying that the same is missing. 20. As noticed earlier, Ext.P1 cheque is of Nedungadi Bank Limited and Ext.P2 dishonour memo is of Punjab National Bank. The evidence of PW1 in cross examination would show that his evidence in chief examination regarding the alleged transaction relatable to the time of execution and issuance of the cheque is not at all reliable. PW1 is not aware for what purpose the accused borrowed the money. The specific suggestion in cross examination that the accused entrusted Ext.P1 cheque....
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....At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the 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 incur....