Delhi District Court
Anil Aggarwal vs Manoj Sharma Cc No.3591/10 on 8 October, 2012
IN THE COURT OF SH. RAKESH KUMAR SINGH:
METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL:
ROOM NO.-42, TIS HAZARI COURT COMPLEX, DELHI
08.10.2012
Anil Aggarwal vs Manoj Sharma CC No.3591/10
JUDGMENT u/s 264 Cr.PC.
Claiming rebuttal of mandatory presumptions of law on the basis of preponderance of
probabilities, the accused is praying for an acquittal in the present nine cases filed by the
complainant on the basis of nine cheques of same date totaling Rs.14 lacs received in a purported
discharge of a friendly loan of the same amount given more than one year ago from the date
mentioned in the cheques.
1.1. The complainant has relied upon mandatory presumptions of law available U/s 118 and
Section-139 NI Act to establish the liability on the part of the accused. Though the complainant
filed a copy of promissory note & receipt, he failed to bring the original of this document and,
therefore, this document i.e. copy of promissory note & receipt cannot be relied upon in evidence.
Complainant has not examined any other witness to establish the liability on the part of the accused
and has solely relied upon mandatory presumptions of law.
1.2. Complainant did not disclose in the complaint or affidavit as to on which date loan was
advanced to the accused or from what sources complainant managed such a huge amount of Rs.14
lacs for the purpose of advancing the alleged friendly loan. Only in the cross-examination, he
claimed that the entire amount was arranged by him from his friends and relatives, namely, Arvind
Garg (Rs.9 lacs), Gauri Shankar (Rs.3 lacs) and Suresh Gupta (Rs.2 lacs). It would be interesting to
note that entire alleged amount of Rs.14 lacs was claimed to be arranged by the complainant from
his friends and relatives. It would be hard to believe that any person who himself does not have
money will arrange such a huge amount from his relatives for advancing the same as a friendly loan
to someone else.
1.3. Be that as it may. Even in his cross examination, complainant has accepted that he had not
mentioned these facts in his complaints neither told his counsel about the same at the time of
Anil Aggarwal vs Manoj Sharma CC No.3591/10 1
preparation of complaint and affidavit. Concealment of such facts and such improvements on the
part of complainant are bound to raise adverse inference against the complainant.
1.4. Even after his cross-examination, complainant could have examined these three persons to
support his case regarding the liability but the complainant chose not to do so. What was the hitch
in doing so has not been explained by the complainant. Such non examination of material witnesses
will further raise adverse inference against the complainant. It becomes clear that complainant has
not come to the court with clean hands.
1.5. The accused, however, has taken a risk to examine these three persons from whom the
complainant allegedly taken the entire amount of Rs.14 lacs for advancement of the loan. These
witnesses are Arvind Garg i.e. DW1, Suresh Kumar Gupta i.e. DW2 and Gauri Shankar Aggarwal
i.e. DW3.
1.6. Witness Arvind Kumar Garg claimed that he had given Rs.9 lacs to the complainant as a
friendly loan 5-6 years ago. He brought his Income Tax Return for the year 2006-2007 and filed a
copy thereof as Exh.DW1/51. He accepted that he had signed the same after reading it. He has
further claimed that he had not concealed anything in Exh.DW1/51. He, however, admitted that the
said Rs.9 lacs is not mentioned in his ITR Exh.DW1/51. It is this situation which is raising
suspicion. The claim of this witness cannot be believed.
1.7. Even further the said claim of Rs.9 lacs was purportedly not belonging to the Arvind Garg as
he claimed that the said amount was received by him from his father for the marriage and education
of two children. It will be hard to believe that in such a situation the said Arvind Garg had given the
complete amount of Rs.9 lacs to the complainant. This witness is not reliable.
1.8. Witness Suresh Kumar Gupta claimed to have given a loan of Rs.2 lacs to the complainant.
He also brought his ITR for the year 2005-2006 and filed a copy thereof as Exh.DW2/52. This
document is also not saying any such loan transaction of Rs.2 lacs with the complainant. Even
further this Rs.2 lacs was purportedly not belonging to the witness himself but as per his claim Rs.
1,50,000/- was given by his father in cash. This is hardly believable that everyone is taking money
from other person to give loan to another person and the said another person is ultimately advancing
a total loan to the accused. This witness was a Government official at the relevant time. He was
duty bound to intimate such loan transaction to his office but he himself stated that he had not
intimated his office about such loan transaction. Though the witness tried to explain that since loan
Anil Aggarwal vs Manoj Sharma CC No.3591/10 2
was temporary one, he did not inform his office. I consider that this cannot be accepted. Short term
of the loan cannot absolve a government servant from disclosing the same to his department. His
non intimation about the loan transaction to the office is going against him.
1.9. Very interestingly at one point of time, this witness Suresh Kumar Gupta claimed that out of
Rs.2 lacs, Rs.1,50,000/- was taken from his father but at another point of time, he claimed that the
loan was given from his personal savings which was kept at his home. This witness cannot be
believed.
1.10. The third witness Gauri Shankar Aggarwal while on examination stated that he could not say
whether he had filed ITR for the year 2004-2005 and that he did not remember whether he had filed
ITR for the year 2005-2006. He turned hostile and was allowed to be cross-examined by the
counsel for the accused. He claimed that he had given Rs.3 lacs to the complainant at the interest of
1.5%. He, however, accepted that he had not filed ITR in the year 2005. Even accused has also been
able to establish that this witness Gauri Shankar had not filed any ITR for the year 2005-2006. For
this purpose accused examined Inspector from Income Tax Department who has placed a letter
from Income Tax Officer indicating that Gauri Shankar has not filed ITR for the Assessment Year
2005-2006. In such circumstances, there are suspicion regarding this witness Gauri Shankar. This
witness Gauri Shankar further accepted that the maximum amount for which he has filed income
tax was Rs.3 to Rs.4 lacs. Meaning thereby that he was not having annual income more than Rs.3 to
Rs.4 lacs. Though he claimed that to his knowledge maximum amount in his bank account was Rs.
10 lacs. He, however, has not produced any documentary evidence. Even he has not produced any
record pertaining to his income or showing availability of any amount with him. It would be hard to
believe that a person who was filing Income Tax Return for a maximum amount of Rs.3 to Rs.4 lacs
can give Rs.3 lacs to any other person as a loan. More so when such person was having a family
consisting himself, his wife, his son and his daughter-in-law. This witness can also not be believed.
1.11. In dealing with the claim of all these three witnesses, one thing has to be kept in mind that
all the three are relatives and friend of the complainant and that complainant has not examined them
but only the accused has examined them as witnesses.
1.12. By non examining all these three witnesses, the complainant has taken a risk of adverse
inference. On the other hand, by examining all these three witnesses, the accused has tried to
controvert the source of money claimed by the complainant.
Anil Aggarwal vs Manoj Sharma CC No.3591/10 3
1.13.I consider that on preponderance, the accused has succeeded in raising sufficient doubt about
the source from which the complainant is claiming to have received the entire amount of Rs.14 lacs.
1.14. Further the additional circumstance that nine cheques are of same date is also raising
suspicion. It would hardly be believed that any person will issue several cheques of the same date
to the same person. Any drawer can issue a single cheque for the entire amount if he was to make a
payment on the same date.
1.15. Complainant has also stated in his cross examination that he was paying only Rs.500/- to Rs.
1,000/- as income tax. It would be hard to believe that such person was capable to arrange a huge
amount of Rs.14 for advancement of the same to any person as a loan.
1.16. Futher circumstances may also be considered. The complainant himself in his cross
examination has accepted that despite being an income tax payee, he had not shown the alleged
transaction of Rs.14 lacs in his ITR. In such circumstances, Court should not come to assist such
person. Hon'ble Supreme Court of India in G. Pankajakshi Amma and Ors. Vs. Mathai Mathew
(Dead) through Lrs and Anr. (2004) 12 SCC 83 has held that :
"According to the 1st respondent these transactions were to be unaccounted
transactions. According to the 1st respondent, all these amounts are paid in cash. If
these are unaccounted transactions then they are illegal transactions. No court can
come to the aid of the party in an illegal transaction. It is settled law that in such cases
the loss must be allowed to lie where it falls. In this case as these are unaccounted
transactions, the Court could not have lent its hands and passed a decree. For these
reasons also the suit was required to be dismissed."
1.17.The accused, however, tried to convey entirely a different story that complainant was his
partner in firm and a vehicle was purchased in name of the partner of accused i.e. the complainant
and that at the time of such purchase, accused had made Rs.3 to Rs.3.5 lacs to the earlier owner of
the vehicle and remaining payment was made sometime by cheque and sometime by cash. He has
filed several receipts of payment in respect of the said vehicle. He also filed permit and insurance of
the said vehicle. He claimed that the complainant sold the said vehicle without the permission and
did not return the sale consideration. He further claimed that in the partnership business he had
instructed his partner to borrow money from the market and for that purpose complainant had
obtained some signed cheques and pronote which were not filled up compeltely and when the
Anil Aggarwal vs Manoj Sharma CC No.3591/10 4
accused asked the complainant to return the sale consideration for the said vehicle, the complainant
filed these false litigations by misusing those cheques and pronote. He further claimed that he does
not owe any liability towards the complainant rather the complainant owes the liability of the sale
consideration of the said vehicle.
1.18. The complainant in his cross examination accepted that the said vehicle was purchased in
his name but claimed that it was purchased by him. He claimed that the said vehicle was given to
the accused for use and accused was maintaining the record of permit and that the accused was
depositing the fee for renewal of permit. The complainant also admitted that he never paid any
installment in respect of the said vehicle and that accused used to take money from him and to pay
the installment of the said vehicle. The complainant even does not remember the name of the owner
from whom the said vehicle was purchased. He also does not know whether the vehicle was ever
registered in his own name or not. He also accepted that he has already sold the said vehicle.
1.19. (If we compare the claim of the accused with the claim of the complainant made in cross-
examination, it would be hard to believe that the concerned vehicle was purchased by the
complainant. The receipts of installments which are exhibited as Exh.CW1/D1 to Exh.CW1/D4 and
Exh.CW1/D10 to Exh.CW1/D50, the permits and insurance Exh.CW1/D5 to Exh.CW1/D9 and the
availability thereof with the accused are clearly going in favour of the accused. We have to believe
that the version of accused regarding the transaction of vehicle was correct).
1.20. However, claim of the accused regarding instructions given to the complainant to borrow
money from the market has not been established by the accused but only this fact cannot give any
right to the complainant to claim that his story should be believed.
1.21.It is well settled law that the accused to prove his innocence is not required to establish the
factum beyond all reasonable doubts. He can always prove his innocence by the preponderance of
probabilities. Mandatory presumptions of law do not relieve the prosecution from establishing the
foundational facts. It is a cardinal principle of criminal jurisprudence that the Prosecution
(Complainant) has to stand on its own leg. The burden is so heavy that no blemishes in the story of
the accused can give a right to the complainant to claim that his version should be preferred,
whereas the burden on the accused is slightly light as he has to discharge the burden by
preponderance of probabilities. The accused can always rely upon the material and circumstances
brought on record by the complainant. If the material and circumstances available on record in its
entirety suggest the existence of any circumstance which is contrary to the stand of the Prosecution
Anil Aggarwal vs Manoj Sharma CC No.3591/10 5
(Complainant), the prosecution has to fail and the accused has to be given benefit of doubt. It is
further well settled law that even if two view are possible, the court should adopt the view which
does not interfere in the life and liberty of any person. (See a constitution bench judgment of
Hon'ble Supreme Court in Sharad Birdhi Chand Sarda vs State Of Maharashtra 1984 AIR
1622).
1.22. Having heard both the sides and after going through the record, I am of the view that the
present complaint cannot succeed.
Nature and extent of rebuttal:
2. A three judges bench of Hon'ble Supreme Court while dealing with Prevention of
Corruption Act has observed in respect of presumptions of law in Trilok Chand Jain vs State Of
Delhi 1977 AIR 666 as under:
"The presumption however, is not absolute. It is rebuttable. The accused can
prove the contrary. The quantum and the nature of proof required to displace
this presumption may vary according to the circumstances of each case. Such
proof may partake the shape of defence evidence led by the accused, or it
may consist of circumstances appearing in the prosecution evidence itself, as
a result of cross-examination or otherwise. But the degree and the character
of the burden of proof which s. 4(1) casts on an accused person to rebut the
presumption raised thereunder, cannot be equated with the degree and
character of proof which under s. 101, Evidence Act rests on the prosecution.
While the mere plausibility of an explanation given by the accused in his
examination under s. 342, Cr.P.C. may not be enough, the burden on him
to negate the presumption may stand discharged, if the effect of the
material brought on the record, in its totality, renders the existence of the
fact presumed, improbable. In other words, the accused may rebut the
presumption by showing a mere preponderance of probability in his favour; it
is not necessary for him lo establish his case beyond a reasonable doubt-
see Mahesh Prasad Gupta v. State of Rajasthan (1). Another aspect of the
matter which has to be borne in mind is that the sole purpose of the
presumption under s. 4(1) is to relieve the prosecution of the burden of
proving a fact which is an essential ingredient of the offences under s. S (1)
(2) of the Prevention of Corruption Act and s. 161, Penal Code. The
presumption therefore can be used in furtherance of the prosecution case
and not in derogation of it. If the story set up by the prosecution
Anil Aggarwal vs Manoj Sharma CC No.3591/10 6
inherently militates against or is inconsistent with the fact presumed, the
presumption will be rendered sterile from its very inception, if out of
judicial courtesy it cannot be rejected out of hand as still born."
2.1. Hon'ble High Court of Bombay in Peter Mascarenhas Vs. Monsabre Ashley Oswald Dias,
CCC X-2010(4) 234 has dealt in great detail with the aspect of accumulation of money. This was
also a case of friendly loan of Rs. 12 lakhs which the complainant had lent to the accused after
collecting the same from several other persons. Complainant had examined the persons from whom
he collected the amount. There was an agreement executed by the accused person. However, after a
detailed factual and legal discussion, Hon'ble High Court acquitted the accused primarily on the
ground that complainant failed to discharge his onus to establish accumulation of money. It has
been observed therein that:
"In juxtaposition though the Complainant was faced with the aforesaid material which
has come through the cross examination of Cw.2, Cw.3 and Cw.4, the Complainant did
not choose to lead any further evidence to discharge the burden of proving the
existence of the liability when the burden again shifted to him. Applying the principles
that the Complainant has to prove the offence beyond reasonable doubt but the
Accused has to only probabilise his defence, in my view, the test has been satisfied by
the Accused then the Complainant. The Complainant as can be seen has not led any
further cogent evidence to prove the factum of the lending of the money to the
Accused and thereby has not discharged the burden which had shifted to him on
account of the evidence which has come in cross examination of the Complainant and
his witnesses."
2.2 In the present case, complainant has not examined any other person, has not shown any
documentary proof in respect of loan, the instant case is even weaker than the case before the
Hon'ble High Court of Bombay.
2.3. Hon'ble Supreme Court in K. Prakashan vs P.K. Surenderan decided on 10 October,
2007 has also dealt with the aspect of friendly loan, accumulation of money and scope of
presumptions of law. The facts of the case were:
"3. Respondent herein allegedly, on diverse dates, advanced a sum of Rs.
3,16,000/- to the appellant who issued a cheque for the said amount on
18.12.1995. The said cheque was dishonoured on the ground of insufficient fund.
Allegedly, when the matter was brought to the notice of the appellant, he
Anil Aggarwal vs Manoj Sharma CC No.3591/10 7
undertook to remit the amount on or before 30.01.1996. The cheque was again
presented but the same was not encashed on the ground payment stopped by the
drawer.
5. The complainant in support of its case led evidence to show that he had
advanced various sums on the following terms:
On 31-1-94 a sum of Rs. One lakh; on 8-6-94, Rs. 86,000/-;
on 12-6-94, Rs. 28,000/-; on 23-4-95, Rs. 50,000/- on
18-6-95, Rs. 40,000/- and on 7-8-95, Rs. 12,000/-.
6. Defence of the appellant, on the other hand, was that he had issued blank
cheques for the purpose of purchase of spare parts, tyres, etc. in connection with
the business of transport services run in the name of his brother. The blank
cheques used to be returned by the sellers of spare parts, etc. when the amounts
were paid. According to the appellant, the complainant lifted the impugned cheque
book put in the bag and kept in his shop. Appellant in support of his case
examined the Bank Manager of the Bank concerned. "
2.4. Hon'ble High Court having reversed the judgment of acquittal, accused approached the
Hon'ble Supreme Court. Hon'ble Supreme Court has observed therein that:
"14. The learned Trial Judge had passed a detailed judgment upon analysing the
evidences brought on record by the parties in their entirety. The criminal court
while appreciating the evidence brought on record may have to weigh the entire
pros and cons of the matter which would include the circumstances which have
been brought on record by the parties. The complainant has been found to be not a
man of means. He had allegedly advanced a sum of Rs. 1 lakh on 13.01.1994. He
although had himself been taking advances either from his father or brother or
third parties, without making any attempt to realize the amount, is said to have
advanced sums of Rs. 86,000/- on 8.06.1994. Likewise he continued to advance
diverse sums of Rs. 28,000/-, Rs. 50,000/-, Rs. 40,000/- and Rs. 12,000/- on
subsequent dates. It is not a case where the appellant paid any amount to the
respondent towards repayment of loan. He even did not charge any interest. He
had also not proved that there had been any commercial or business transactions
between himself and the appellant. Whey the appellant required so much amount
and why he alone had been making payments of such large sums of money to the
appellant has not been disclosed. According to him, he had been maintaining a
diary. A contemporaneous document which was in existence as per the admission
of the complainant, therefore, was required to be brought on records. He failed to
do so. He also did not examine his father and brothers to show that they were men
of means and in fact advanced a huge sum to him only for the purpose of grant of
Anil Aggarwal vs Manoj Sharma CC No.3591/10 8
loan by him to the appellant. The learned Trial Court not only recorded the
inconsistent stand taken by the complainant in regard to the persons from whom
he had allegedly borrowed the amount, it took into consideration the deposit of the
cheques in the bank commenting: Ext. D1 the counterfoil of the cheque book
issued to the accused from that bank, was proved through him. It contains the
counterfoils of the cheques 782451 to 782460. Ext. D2 is the pass book issued to
the accused from that bank. SW1 is the Branch Manager of Syndicate
Bank,Koyilandy. He would say that in Ext. P4 ledger extract, cheque No. 782460
reached the bank for collection on 30.12.93. The net transaction in that account
was in the year 1996. Cheque No. 782451 reached the bank on 8.1.96. Ext. D1
shows that is the first cheque in that book. 782460 is the lost cheque in that book.
If the lost cheque i.e. 782460 reached the bank for collection on 30.12.93 in
normal and reasonable course the first cheque i.e. 782451 might have been issued
even prior to that date. Case of the complainant is that Ext. P1 cheque was given
to him by the accused on 5.10.95 and the cheque was dated 18.12.95. Ext. P4, D1
and D2 substantiate the case of the accused that the allegation of the complainant
that Ext. P1 cheque was given to him on 18.12.95 is not genuine."
2.5. Hon'ble Supreme Court has further observed therein that:
"15. The High Court, as noticed herein before, on the other hand, laid great
emphasis on the burden of proof on the accused in terms of Section 139 of the
Act.
******************
19. No exception to the aforementioned legal principle can be taken. What, however, did not fall for consideration in the aforementioned case was as to how the said burden can be discharged.
20. It is now trite that if two views are possible, the appellant court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate courts jurisdiction to interfere is limited. [See M.S. Narayana Menon (supra) and Mahadeo Laxman Sarane & Anr. v. State of Maharashtra, 2007 (7) SCALE 137] The High Court furthermore has not met the reasons of the learned Trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different. "
2.6. Hon'ble Supreme Court in Kamala S vs Vidyadharan M.J. & Anr Appeal (crl.) 233 of 2007, decided on 20.02.2007 has observed as under:Anil Aggarwal vs Manoj Sharma CC No.3591/10 9
"15. The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case.
16. The nature and extent of such presumption came up for consideration before this Court in M.S. Narayana Menon Alias Mani V. State of Kerala and Anr. [(2006) 6 SCC 39] wherein it was held :
"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 supposition that the consideration dos not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon."
17. This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution, it was held;
"33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another."
It was further observed that ;
" 38. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a "fortiori" even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court.
39. A presumption is a legal or factual assumption drawn from the existence of certain facts."Anil Aggarwal vs Manoj Sharma CC No.3591/10 10
2.6. Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 AIR SCW 738 has observed that:
"30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.1
31.The courts below, as noticed herein before, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different.
... ....
34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. 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 he relies. ......
45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have been rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by Section139 Anil Aggarwal vs Manoj Sharma CC No.3591/10 11 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
It may be pertinent to mention here that a three judges bench of the Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010 has considered the dictum of Krishna Janardhan Bhat (supra) and overruled the view so far as existence of liability is concerned, however, has not dissented with other parameters observed and laid down in the said case. It has been observed therein that:
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. "
2.7 In the facts and circumstances of the present case, if we make a fine balance between the two propositions i.e. reverse onus and presumption of innocence, it can be safely held that accused has successfully probabilised his defence by showing that the non-existence of debt or liability and consideration is probable or its non existence is so probable that a prudent man would under the circumstances act upon the supposition that it did not exist.
2.8. I am of the opinion that an accused has a right to rebut the presumption by placing reliance upon the circumstances brought and material placed by the complainant. Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010 has further held that:
"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. 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 Anil Aggarwal vs Manoj Sharma CC No.3591/10 12 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."
Conclusion:
3. I am of the opinion that the above attending circumstances are sufficient to displace the burden of proof which is somewhat lighter on accused. The law regarding the degree of proof required from the accused to prove his defence is well settled. The accused is required only to prove by preponderance of probabilities that the defence bears ring of truth. The accused is not required to prove his defence beyond reasonable realm of doubt as is required to be done by the prosecution. Accused has created a reasonable doubt in respect of existence of liability, consideration and issuance of cheque in discharge of liability. Complainant failed to discharge the sifted burden. In such circumstances, prosecution has to fail.
4. I accordingly return a finding of not guilty against the accused.
5. Accused Manoj Sharma is acquitted from the charges in the present complaint case i.e. for offence U/s 138 NI Act.
6. A copy of this order be placed on the official website of the District Court.
(Rakesh Kumar Singh) MM(NI Act)-01, Central 08.10.2012 Anil Aggarwal vs Manoj Sharma CC No.3591/10 13