Madras High Court
N.Lakshmi vs P.Damodarasamy on 22 March, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.03.2018 CORAM THE HON'BLE MR. JUSTICE R.SURESH KUMAR Crl.A.No.554 of 2014 N.Lakshmi ... Appellant Vs. P.Damodarasamy ... Respondent Prayer:- Criminal Appeal is filed under Section 378 of the Code of Criminal Procedure to set aside the order of acquittal made in Crl.A.No.73 of 2013 on the file of the learned I Additional Judge (TADA), Chennai, dated 28.02.2014, reversing the conviction imposed in the Judgment made in C.C.No.15490 of 2007 dated 06.03.2013 on the file of the learned III Metropolitan Magistrate, George Town, Chennai, by allowing this Criminal Appeal. For Appellant : Ms.N.Lakshmi Party-in-person For Respondent : Mr.John Sathyan JUDGMENT
This Criminal Appeal has been preferred against the Judgment made by the learned I Additional Judge (TADA), Chennai, in Crl.A.No.73 of 2013 dated 28.02.2014, by and under which, the learned Judge has reversed the Judgment and conviction made by the learned III Metropolitan Magistrate, George Town, Chennai, in C.C.No.15490 of 2007 dated 06.03.2013.
2.The appellant is the complainant before the trial Court and the respondent is the accused. For the sake of convenience, they called as the complainant and the accused, respectively.
3.It is the case of the complainant that the accused borrowed a sum of Rs.4,50,000/- from the complainant for interest @ 24% per annum with an assurance that it would be returned back within a period of one month. Though the said amount was borrowed by the accused, he did not repay the same, as he assured. Therefore, according to the complainant, she had made repeated requests and demand, and in response to such repeated requests, the accused had issued a cheque No.330594 dated 21.09.2001 for a sum of Rs.4,50,000/- drawn at Karnataka Bank Limited, Coimbatore.
4.The said cheque was presented at the complainant's Bank for collection and the same had been returned with a Return Memo dated 28.01.2002 stating insufficiency of funds. Thereafter, the complainant had issued a legal notice under Section 138(b) of the Negotiable Instruments Act on 11.02.2002. However, the said notice had not been received by the accused, as the same was returned on 22.02.2002 stating that there was no such person in the address. It is the further case of the complainant that the said notice was returned as no such person in the address but, the postal cover, after having tored, has been bundled with the thread and therefore, the complainant claimed that she had given a complaint to the Postal Department to take action against the erring postal person in this regard. Subsequently, the complainant filed a private complaint under Section 200 of the Code of Criminal Procedure seeking to punish the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
5.The trial Court taken the said complaint on file and issued summons for appearance of the accused and tried the case. After having considered the evidences placed by both sides, the trial Court by Judgment dated 06.03.2013 had found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and accordingly, sentenced him for six months Simple Imprisonment and also directed the accused to pay the cheque amount of Rs.4,50,000/- as compensation, within a period of one month.
6.Aggrieved over the said Judgment and conviction made by the trial Court, the accused preferred an appeal in Crl.A.No.73 of 2013 before the learned I Additional Judge (TADA), Chennai. The Appellate Court having re-appreciated the evidence of both sides and after having gone through the Judgment of the trial Court has ultimately found that the accused was not guilty and therefore, the learned Appellate Court Judge, by his Judgment dated 28.02.2014, allowed the said appeal by setting aside the Judgment and sentence made by the trial Court. Aggrieved over the said Judgment of the First Appellate Court, the complainant preferred this appeal.
7.It is the case of the complainant that the accused borrowed a sum of Rs.4,50,000/- as hand loan for interest @24% per annum. Since the said amount was not repaid as assured by the accused, the complainant claimed that several demands had been made orally, pursuant to which only a Cheque No.330594 (Ex.P.1) dated 21.09.2001 for a sum of Rs.4,50,000/- drawn at Karnataka Bank Limited, Coimbatore, was issued by the accused and when the said cheque was presented at the Bank by the complainant, the same was returned as insufficient funds. Thereafter, statutory notice under Section 138 (b) of the Negotiable Instruments Act was issued, which, according to the complainant, the postal cover was opened and subsequently had been returned with the postal endorsement that the addressee is not available in the address. Therefore, the complainant preferred a private complaint before the trial Court to punish the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
8.On the side of the accused, it was the defence taken by him, when he deposed before the trial Court that, because of the purchase of cotton from the complainant, the accused owed a sum of Rs.88,000/- only and the said sum could not be paid and in order to ensure the said payment of Rs.88,000/-, as a security, he had given the cheque in question (Ex.P.1) to the complainant, as a blank cheque with only signature, without filling the name and amount therein. The said cheque had been misused by the complainant by filling the amount of Rs.4,50,000/- and presented the same to the Bank. Therefore, it is the definite case of the accused that he had not borrowed any sum of Rs.4,50,000/- as claimed by the complainant and therefore, there was no legally enforceable debt towards the complainant to be payable by the accused and therefore, Ex.P.1-Cheque was not issued for the payment of any such debt of Rs.4,50,000/- and therefore, the accused claimed that he did not commit any offence punishable under Section 138 of the Negotiable Instruments Act.
9.Though the trial Court accepted the said case of the complainant and convicted the accused, the First Appellate Court has reversed the said Judgment and acquitted the accused.
10.In order to analyze the consideration shown by both the trial Court Judge as well as the Appellate Court Judge, the actual case as projected by the complainant through the legal notice and the complaint can be looked into. In the complaint, the complainant did not state on what date the said amount of Rs.4,50,000/- was given to the accused. The complaint merely says that the accused borrowed at Chennai a sum of Rs.4,50,000/- and agreed to repay the said sum with interest @ 24% per annum. The complaint further stated that after persistent demand, the accused issued a cheque on 21.09.2001 for a sum of Rs.4,50,000/- and when the same was presented for collection, it was returned with bank instruction dated 28.01.2002 that funds insufficient.
11.It is further contended in the complaint that on 11.02.2002, the complainant sent a legal notice under Section 138(b) of the Negotiable Instruments Act and the same had been returned on 22.02.2002 with an endorsement as no such address at Pattanam returned to sender.
12.In Ex.P.4-Legal notice of the complainant also, it is averred by the complainant that the accused borrowed at Chennai a sum of Rs.4,50,000/- and agreed to repay the said sum with interest @24% per annum and inspite of repeated demands made by the complainant, the accused failed to repay the amount and after persistent demand, the accused issued a cheque dated 21.09.2001 for a sum of Rs.4,50,000/- and also, the accused requested the complainant to present the said cheque for payment, pursuant to which, the cheque was presented and was dishonoured on 28.01.2002 by Bank intimation stating that funds insufficient. Except the aforesaid averments, neither the complaint nor Ex.P.4-Legal Notice do not have any other details as to on what date the amount was borrowed by the accused and when the cheque was given, because it was stated specifically by the complainant that after persistent demand, the cheque dated 21.09.2001 was given.
13.The complainant herself has been examined as P.W.1 before the trial Court, where she deposed in the Chief examination about the date on which the accused borrowed the money and had given the said cheque. She further stated in the chief examination that she had been doing cotton business as a broker. Out of the money earned from that business only, the complainant claimed that, she lent the money to the accused. However, in the cross examination, the complainant/PW1 had stated that the father of the complainant had given Rs.5,00,000/- ten years back to the complainant to look after the mother of the complainant and the said amount had been kept in the Cupboard by the complainant and only out of the said amount of Rs.5,00,000/-, the complainant claimed that, she had given Rs.4,50,000/- to the accused.
14.She has further stated in the cross examination that, one month after borrowal of the money only, the accused had given the said cheque. The relevant portion of the deposition of the complainant both in the chief examination as well as in the cross examination are extracted hereunder for easy reference:
21.09.2011k; njjp vd;dplk; vjphp +gha; ehyiu yl;rk; nfl;lhh;. mjid ehd; buhf;fkhf bfhLj;njd;. mtUila kpy;Yf;fhf ,e;jf; flid th';fpdhh;. ,e;jj; bjhifia xU khjj;jpw;Fs; 24% tl;o nghl;L je;JtpLtjhf brhd;dhh;. gzk; th';fpa md;nw nfhak;g[j;J}h;/ fh;ehlfh/ t';fp fhnrhiy +gha; ehyiu yl;rj;jpw;F bfhLj;jhh;. fhnrhiy th.rh.M.1 xU khjk; fHpj;Jk; vjphp gzk; bfhLf;ftpy;iy. ehd; g";R th';fp bfhLf;Fk; g[nuhf;fh; bjhHpy; bra;J tUfpnwd;. mjpy; te;j gzj;ij itj;J vjphpf;F fld; bfhLj;njd;. gzj;ij ehd; gPnuhtpy; jhd; itj;J ,Ue;njd;. vd; jha;/ jfg;gdhUf;F xnu kfd; vd; je;ij vdf;F +.5yl;rk; bfhLj;jhh;. mij jhd; vjphpf;F bfhLj;njd;. vd; jfg;gdhh; +.5yl;rk; bfhLj;jhh; vd;Wk;/ me;j +ghapy; jhd; vjphpf;F gzk; bfhLj;njd; vd;why; rhpjhd;. fhnrhiyapd; njjp 21.09.2001 gzk; bfhLj;J xU khjk; fHpj;J jhd; brf; bfhLj;Js;shh; vd;why; rhpjhd;.
15.The complainant in her evidence has further stated that the cheque dated 21.09.2001 was deposited at her Bank on 26.11.2001 and according to the complainant, she had presented the cheque at once at her Bank, which was returned with a reason insufficiency of funds, however, the very same complainant in the further cross examination has stated that the cheque, which was presented on 26.11.2001, since was returned as insufficiency of funds, she had demanded once again to repay the said amount and thereafter, the complainant claimed that, she deposited the cheque at second time, which was returned for the same reason, i.e., insufficiency of funds on 28.01.2002. In this regard, the complainant/PW1 at her cross examination, had made the following statements, which is reproduced herein for easy reference:
26.11.2001y; ehd; nghl;l fbyf;rDf;F nghl;L brf; vjphpapd; t';fpf;F brd;W nghjpa gzkpy;iy vd;W jpUk;g te;jJ vd;W brhd;dhy; rhpjhd;. mjw;fhf ehd; vjphpaplk; gzk; ,y;iy vd;W jpUk;gg;gl;lJ Fwpj;J ehd; thahy; jhd; nehpilahf nfl;nld;. Mdhy; nehl;O!; bfhLf;ftpy;iy. kPz;Lk; xU Kiw mnj brf;if tNYf;fhf mij mDg;gpndd; vd;W brhd;dhy; rhpjhd;. 2tJ Mf nghlg;gl;l brf;if nghl;L 28.01.2002y; nghjpa gzkpy;iy 2tJ Kiwahf jpUk;g te;jJ vd;W brhd;dhy; rhpjhd;. 26.11.2001y; brf; jpUk;gp te;jJ ehd; thahy; nfl;nld;. vjphp kWKiwa[k; fbyf;rDf;F nghl brhd;dhh;. me;j njjp 28.01.2002y; nghjpa gzkpy;iy vd;W jpUk;g te;Jtpl;lJ.
16.On perusal of the said stand taken by the complainant at three places i.e., first time, in the legal notice under Section 138 (b) of the Negotiable Instruments Act, 2nd time, at the time of presenting the complaint and 3rd time, at the time of deposition as PW1 before the trial Court, it would disclose that, the complainant was not in consistency in her stand. Both in the legal notice as well as in the complaint, the complainant had not stated any details about as to when the money was borrowed by the accused and thereafter, when the cheque was issued and when the cheque was presented before the Bank for collection. If it is the case of the complainant that Rs.4,50,000/- was borrowed as hand loan with an assurance to repay within one month with interest @24% per annum and as assured, since the accused did not come forward to repay the same and only after persistent demand, he had issued a cheque dated 21.09.2001, the complainant should have immediately deposited the said cheque for collection. Since the money had been given for interest @24% per annum and the complainant received the cheque on demand from the accused, why the complainant had not presented the cheque dated 21.09.2001 immediately, has not been explained.
17.If at all, the money had been lent for interest that too on the higher interest of 24% per annum, if the principal itself is Rs.4,50,000/-, why the complainant did not demand to get the cheque for both the principal and interest and why the complainant has accepted the cheque only for principal. When the complainant had been very specifically stated in both the notice as well as the complaint that the amount was borrowed at Chennai, but at her convenience, the complainant omitted the date of payment. Unless the complainant come forward to say that on a particular date, the amount was paid and after persistent demand, as the accused failed to repay the same, he had come forward to issue the cheque on 20.09.2001, the period between the date of payment and the date of issuance of cheque is also important to have the prima facie belief on the statement of the complainant to state that the money was lent on a particular date to the accused and therefore, he failed to repay the same on or before the due date, as agreed by the parties and thereafter, how long the persistent demand had been made by the complainant, with a result the complainant has issued cheque dated 21.09.2001, could have been very well explained by the complainant. But, the complainant has not explained these aspects, which itself creates a reasonable doubt that whether the theory projected by the complainant on lending the money/loan to the accused, is to be believed or not.
18.Further, it is the case of the complaint that she paid the money out of Rs.5,00,000/- given by her father to look after her mother but, the very same complaint, before the trial Court has deposed in clear terms that, she had been doing cotton business as a broker and out of the money earned from that business only, she had given the money to the accused. But, that stand also, had subsequently been changed in the further cross examination on another date, that her father alone had given Rs.5,00,000/- and she had kept the money at the almirah and from the said amount only, she had given the money to the accused.
19.If the case of the complainant that she lent a sum of Rs.4,50,000/- as hand loan with interest @24% per annum to the accused is to be accepted, it also to be looked into that, the said money was given by her father to look after her mother. Whether the money given by her father to look after her mother long time back could have been kept idly in the cupboard and the same can be parted away by way of hand loan that too for a heavy interest of 24% per annum. If this kind of help allegedly made by the complainant is to be accepted, the person must have a close relationship for a considerable period, then only, this kind of transaction could be possible.
20.It is the case of the complainant that the accused had borrowed the said amount to improve his business. If at all, for business improvement if a person seeks money, no prudent person can give more than 80% of the money, which was given by the elder member of the family to look after another elder member of the family.
21.Further, if the complainant has claimed that the cheque was issued by the accused only after persistent demand, it goes to say that the complainant was in dire need of the said money. If that being the position, why the cheque dated 21.09.2001 was not immediately presented at the Bank, as according to the complainant, the same was presented only on 26.11.2001.
22.After the cheque was dishonoured, it was claimed by the complainant, only in the cross examination that the accused had orally given request to the complainant to re-present the said cheque and therefore, when the same was presented, which was returned once again for insufficiency of funds on 28.01.2002. These factors had not been mentioned either in the legal notice under Section 138(b) of the Negotiable Instruments Act or in the complaint filed before the trial Court. If these answers were not extracted from the complainant, at the time of cross examination, these aspects would not have been brought to the notice of the Court.
23.These inconsistencies from the beginning on the side of the complainant had made a suspicion in the judicial mind that whether the complainant has really given the money to the accused and whether the said amount of Rs.4,50,000/- claimed to have been given to the accused by the complainant can be believed or not.
24.In proceedings under Section 138 of the Negotiable Instruments Act, it is a well settled proposition that the initial presumption would always be in favour of the complainant, provided if the execution of the cheque and the signature is accepted by the accused. Here in the case in hand, the accused has accepted the signature of the cheque and its execution provided, it is the definite case of the accused that out of the business transaction of cotton business undertaken by the complainant and the accused, the accused had to repay a sum of Rs.88,000/- to the complainant, and in order to ensure the repayment of the said amount, as a security, it was claimed by the accused that, he had issued a blank cheque. It is the case of the accused that the said cheque issued by the accused as a security for repayment of a sum of Rs.88,000/- towards business transaction, had been misused by the complainant.
25.From the said case of the accused, two things have been cleared. One is that there has been a business dealing between the complainant and the accused. Secondly, the cheque belongs to the accused and the signature in the cheque in question also belongs to the accused. In this context, merely because the accused has accepted the cheque as well as the signature, can it be presumed that the cheque in question had been issued by the accused only to enforce the legally enforceable debt towards the complainant, as she claimed, is yet another question to be answered.
26.In a number of cases, the Law under Section 138 of the Negotiable Instruments Act, has been developed and strengthened by Law Courts at various point of time. If the initial presumption under Sections 139 and 118 of the Negotiable Instruments Act give a favourable tilt towards the complainant, such a statutory presumption is always a rebuttable presumption only.
27.In this regard, if decree of proof, to come to a presumption in favour of the complainant, is the preponderance of probability. Equally the decree of proof for rebutting on the side of the accused, again would be the preponderance of probability.
28.In this regard, the classic Judgment of the Hon'ble Apex Court in Rangappa v. Sri Mohan reported in 2010 11 SCC 441 can very well be pressed into service. In the said Judgment cited supra, their Lordships at Paragraphs 26 to 28 has held as follows:
26. 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 [(2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] 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. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence 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 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."
29.Here in the case in hand, the complainant case is strengthened only on the ground that the accused had accepted the issuance of cheque as well as the signature. But, at the same time, the accused had denied the issuance of cheque for a sum of Rs.4,50,000/- as claimed by the complainant and it is the further case of the accused that there is no legally enforceable debt for a sum of Rs.4,50,000/- as claimed by the complainant.
30.Based on the acceptance of the accused about the cheque in question as well as his signature, if we presume under Sections 139 and 118 of the Negotiable Instruments Act, that the statutory presumption since in favour of the complainant, the complainant has established the initial presumption in his favour. In this case, the rebuttal which has come from the accused side should also be taken into account as to whether such rebuttal can be accepted to shatter the statutory presumption made in favour of the complainant.
31.In this regard, it is the definite case of the accused that he has to pay Rs.88,000/- towards the complainant, out of business transaction. Only as a security, the said cheque was issued as a blank cheque. In support of the accused case, the handwriting expert had been examined before the trial Court, who had examined the cheque in question, had deposed as DW2 before the trial Court and the relevant portion of his deposition are as follows:
,e;j tHf;if bghWj;j tiu rpy vGj;Jf;fs; xj;Jg; ngha[k;/ xj;Jg; nghfhkYk; ,e;j tHf;Ffspy; cs;s VG thh;j;ijfspy; tH';fg;gl;l rh;r;irf;Fhpa Mtz';fspy; vGj;Jf;fspy; bghpa vGj;Jf;fs; ,ilapilna ,Ue;j fhuzj;jpdhy; jhd; v';fshy; ve;j xU Kotpw;Fk; tu ,ayhky; nghdJ. tHf;F fhnrhiyapy; cs;s ifbaGj;jpilna cs;s bghpa vGj;Jf;fis nghy; khjphp ifbaGj;jpYk; mg;gona cs;sJ. rh;r;irf;Fhpa Mtzj;jpy; cs;s rpy bghpa vGj;Jf;fs; xj;Jg;ngha; xnu khjphpahf ,Ue;jJ. vGj;Jf;fis cUthf;Fk; tpjj;jpy; xj;Jg;ngha; ,Ue;jJ. ifbaGj;Jf;fs; xj;Jg; ngha[k;/ xj;Jg; nghfhkYk; ,Ue;j fhuzj;jhYk; tH';fg;gl;l khjphp ifbaGj;Jf;fs; bghpa vGj;Jf;fs; ,Ue;j fhuzj;jhYk; v';fSf;F eilKiwapy; Vw;Wf;bfhs;sg;gl;l ifbaGj;Jf;fs; ,y;yhj fhuzj;jpdhYk; Mfpa epiyapy; jhd; eh';fs; ve;j fUj;Jiua[k; tH';f ,ayhky; nghdJ. o rpwpa vGj;Jf;fs; xj;Jg;ngha[k; vd; rpwpa vGj;J khWgl;Lk; o kw;Wk; vd; rpwpa vGj;Jf;fs; khWgl;L fhzg;gl;lJ.
32.From the deposition of DW2-Handwritten Expert, it can be easily ascertained that the letters shown in Ex.P.1 are partly same as that of the accused and partly not. Therefore, DW2 has given his opinion, that he was not definite to state that the handwriting in Ex.P.1, is that of the accused.
33.Since the proceedings under Section 138 of the Negotiable Instruments Act, is punitive in nature and once the Court has come to the conclusion that the accused is guilty, such conclusion has to be supported by clear evidence. In this regard, the Law laid down by the Hon'ble Apex Court in M.S. Narayana Menon @ Mani v. State of Kerala and another reported in 2006 6 SCC 39, can be taken as a precedent. The Hon'ble Apex Court in the said Judgment cited supra has stated that the presumption under Sections 118 and 139 shall be with the standard of proof of preponderance of probability only. The relevant portions of the said Judgment are extracted hereunder:
27. In view of the aforementioned backdrop of events, the questions of law which had been raised before us will have to be considered. Before we advert to the said questions, we may notice the provisions of Sections 118(a) and 139 of the Act which read as under:
118. Presumptions as to negotiable instruments.Until the contrary is proved, the following presumptions shall be made
(a) of consideration.that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
139. Presumption in favour of holder.It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Presumptions both under Sections 118(a) and 139 of the Act are rebuttable in nature.
.....
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 does 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.
31. A Division Bench of this Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms: (SCC pp. 50-51, para 12) 12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
34.If the abovesaid principles of the Apex Court in both Judgments cited above, are applied to the present case, the statutory presumption found in favour of the complainant merely on the basis of the issuance of cheques and acceptance of signature by the accused, has been acceptably rebutted with a decree of proof of preponderance of probability, by the accused.
35.There is no consistent case on the side of the complainant nor there had been cogent evidence from the complainant side, especially, from PW1, the complainant. The stand inconsistently taken by PW1, the complainant, before the trial Court on three occasions namely, at the time of issuance of notice under Section 138(b) of the Negotiable Instruments Act, at the time of making complaint and also, at the time of making deposition both in the chief examination as well as in the cross examination, would go to show that, the initial presumption gained by the complainant under Sections 139 and 118 of the Negotiable Instruments Act, has not been consistently protected and kept unassailed by the complainant because of her own inconsistent stand. However, the accused has been definite in his stand and therefore, the stand of the accused has brought an acceptable rebuttal within the meaning of decree of proof of preponderance of probability and therefore, such rebuttal has shattered the statutory presumption of the complainant. Moreover, in the said case of M.S.Narayana Menon's case cited supra, the Hon'ble Apex Court has underlined the principle at Paragraph 54 which reads thus:
54.In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.
36.Therefore, when the Appellate Court sits upon an appeal against acquittal, where if two views are possible, to the Appellate Court against the Judgment of acquittal, the Appellate Court should not interfere with the findings of the Court below. If this golden principle as enunciated in the Judgment cited supra, is applied in this case, this Court has no hesitation to hold that, there is absolutely no scope for interference in the Judgment of the Lower Appellate Court, where after analyzing the material evidence in detail, the learned Judge has given Judgment by setting aside the trial Court Judgment and such finding of the Lower Appellate Court as impugned herein is neither perverse nor unacceptable.
In the result, the Judgment of the Appellate Court, which is impugned herein is sustained. Hence, this Criminal Appeal fails and accordingly, the same is dismissed.
22.03.2018 Index :Yes/No Internet :Yes/No Speaking/Non Speaking order mps To
1.The I Additional Judge (TADA), Chennai.
2.The III Metropolitan Magistrate, George Town, Chennai.
R. SURESH KUMAR.J, mps Crl.A.No.554 of 2014 22.03.2018