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Bombay High Court · body

2010 DIGILAW 289 (BOM)

Sandeep Shirodkar v. Shankar Dhawaskar

2010-02-24

R.M.SAVANT

body2010
Judgment : 1. The above criminal Appeals involve common facts and raise a common issue and are therefore heard and disposed of together. Criminal Appeal No. 17 of 2009 is filed challenging the judgment and order dated 26.9.2008 passed by the learned Additional Sessions Judge-3, South Goa, Margao, by which the judgment and order dated 8.5.2008 passed in Criminal Case No. 1199/OA/NIA/06/B by the learned J.M.F.C., Vasco-Da-Gama, convicting the Respondent No.1/Accused came to be set aside. 2. Criminal Appeal No. 28 of 2009 is filed challenging the judgment and order dated 25.9.2008 passed by the learned Additional Sessions Judge-3, South Goa, Margao, by which the judgment and order dated 8.5.2008 passed in Criminal Case No.1200/OA/NIA/06/B by the learned J.M.F.C., Vasco-Da-Gama, convicting the Respondent No.1/Accused came to be set aside. The subject matter of the two complaints are the cheque bearing No.13840 for Rs. 10,00,000/- drawn on UTI Bank Vasco-Da-Gama and the cheques bearing Nos. 13838 and 13839 for Rs. 15,00,000/-and Rs.10,00,000/- drawn on UTI Bank, Vasco-Da: Gama. The said cheques have been dishonoured for insufficiency of funds giving rise to the filing of the complaints under Section 138 of the Negotiable Instrument Act ( for short “the Act”). 3. The parties would be referred to as per their status in the Trial Court. The facts in Criminal Appeal No. 17 of 2009 would be referred to for the sake of convenience. 4. The Appellant herein is the original complainant who has filed the said two complaints. It is the case of the complainant that the accused was in urgent need of money for his business for which he had approached the complainant upon which the complainant and one Vassudev Surya Parab had allegedly advanced to the accused various sums as follows :- 1. Rs.5,00,000/- on 12.5.2005 2. Rs.5,00,000/- on 27.5.2005 3. Rs.5,00,000/- on 10.6.2005 4. Rs. 3,00,000/- on 10.7.2005 5. Rs.3,00,000/- on 14.8.2005 6. Rs.3,00,000/- on 13.9.2005 7. Rs.3,00,000/- on 9.10.2005 and 8. Rs.8,00,000/- advanced by Shri Vassudev S. Parab on the guarantee and surety of the complainant. 5. It is the case of the complainant that in discharge of his liability, the accused issued three cheques bearing Nos. 13838 dated 5.1.2006 for Rs.15,00,000/-, 13839 dated 7.1.2006 for Rs.10,00,000/- and 13840 dated 9.1.2006 for Rs. 10,00,000/-, all drawn on UTI Bank, Vasco Goa. Rs.8,00,000/- advanced by Shri Vassudev S. Parab on the guarantee and surety of the complainant. 5. It is the case of the complainant that in discharge of his liability, the accused issued three cheques bearing Nos. 13838 dated 5.1.2006 for Rs.15,00,000/-, 13839 dated 7.1.2006 for Rs.10,00,000/- and 13840 dated 9.1.2006 for Rs. 10,00,000/-, all drawn on UTI Bank, Vasco Goa. As mentioned hereinabove, the cheque bearing No.13840 dated 9.1.2006 for Rs.10,00,000/- is the subject matter of the complaint involved in Appeal No.17 of 2009. The said cheque on presentation by the complainant with his bank was dishonoured for insufficient funds. The complainant thereafter issued a demand notice to the accused. However, since the accused failed to comply with the said notice, a complaint which came to be numbered as Criminal Case No. 1199/OA/NIA/06/B, came to be filed by the complainant. The learned J.M.F.C., was pleased to issue process against the accused, the accused appeared in the matter. The substance of accusation was explained to the accused to which the accused pleaded not guilty. The complainant examined two witnesses in support of his case and closed his evidence. The statement of the accused was recorded under Section 313 of the Criminal Procedure Code. The Respondent No.1/accused examined himself and one witness in support of his case. 6. The Trial Court on the basis of the evidence that was before her and principally relying upon the Acknowledgement of Debt dated 4.1.2006 and the receipts at Exhibit 30 Colly came to a conclusion that the complainant had advanced the said sum of Rs.35,00,000/- to the accused and the accused had issued the cheques which were dishonoured towards the discharge of the said liability of the accused. The learned J.M.F.C., therefore convicted the accused under Section 138 of the Negotiable Instruments Act and sentenced him to undergo 15 days simple imprisonment and ordered him to pay Rs.10,00,000/-to the complainant by way of compensation under Section 357 of the Criminal Procedure Code, in default of payment of the compensation, the accused to undergo further six months simple imprisonment. In the second complaint i.e. Criminal Case No. 1200/OA/NIA/06/B the accused is convicted and sentenced to pay Rs.15,00,000/-to the complainant by way of compensation being the cheque amount and to undergo 15 days simple imprisonment, in default of payment of the compensation the accused to undergo six months simple imprisonment. 7. In the second complaint i.e. Criminal Case No. 1200/OA/NIA/06/B the accused is convicted and sentenced to pay Rs.15,00,000/-to the complainant by way of compensation being the cheque amount and to undergo 15 days simple imprisonment, in default of payment of the compensation the accused to undergo six months simple imprisonment. 7. Aggrieved by the conviction by the J.M.F.C., by her judgment and order dated 8.5.2008, the accused filed Criminal Appeals being Criminal Appeal No. 34 of 2008 and Criminal Appeal No. 35 of 2008. The said Criminal Appeals were allowed by the learned Additional Sessions Judge-3, South Goa, Margao, and resultantly the conviction of the accused was set aside. The lower Appellate Court came to a conclusion that the accused on the basis of the material on record and relying upon the circumstances has successfully rebutted the presumption under Section 139 of the said Act and thereby probabilised his defence and since the complainant thereafter has not discharged his burden which shifted on him to prove the existence of a debt or liability of the accused, the accused was entitled to be acquitted. The lower Appellate Court, therefore, as mentioned hereinabove set aside the conviction of the accused by the learned J.M.F.C., in both the complaints. The aforesaid judgment and orders passed by the lower Appellate Court i.e. Additional Sessions Judge-3, South Goa, Margao, are the subject matter of the above two Appeals. 8. I have heard learned Counsel for the Appellant/Complainant Shri A. D. Bhobe and the learned Counsel Shri Arun Bras De Sa for the Respondent No.1/Accused. The learned Counsel for the complainant at the outset fairly submitted that the learned J.M.F.C. has not weighed and evaluated the evidence on record whilst recording a finding as regards the guilt of the accused. The learned Counsel fairly submitted that the learned J.M.F.C. has merely recorded her conclusion without a proper evaluation or appreciation of the evidence. However, the learned Counsel submitted that if the lower Appellate Court was of the view that there was no proper appreciation or evaluation by the Trial Court, the lower Appellate Court should have remanded the matter back to the Trial Court for a de novo consideration. However, the learned Counsel submitted that if the lower Appellate Court was of the view that there was no proper appreciation or evaluation by the Trial Court, the lower Appellate Court should have remanded the matter back to the Trial Court for a de novo consideration. The learned Counsel for the complainant further relying on the Acknowledgement of Debt dated 4.1.2006 and the receipts at Exhibit 30 Colly submitted that the complainant has discharged his burden and, therefore, the cheques being issued in discharge of a debt or liability was proved by the complainant. The learned Counsel lastly submitted that there is no proper evaluation of the evidence also by the lower Appellate Court and, therefore, this Court should interfere in its Appellate jurisdiction and set aside the acquittal of the accused. 9. Per contra, it is submitted by Shri Arun Bras De Sa, the learned Counsel for the Respondent No.1/Accused that the Trial Court had erred in convicting the accused on an erroneous premise that the presumption under Section 139 of the Act is also as regards the existence of a debt. The learned Counsel submitted that the presumption under Section 139 of the Act is only to the effect that the cheques have been issued in discharge of a debt or liability, but the existence of a debt or liability has to be initially proved by the complainant, only thereafter the onus shifts to the accused and if the accused is able to discharge the burden of rebutting the presumption under Section 139 of the Act by raising a probable defence, then the burden shifts back to the complainant. According to the learned Counsel for the Respondent No.1/Accused, the Trial Court by merely taking into consideration the Acknowledgement of Debt dated 4.1.2006 which is not even relied upon in the complaint as filed and the receipts at Exhibit 30 colly which are produced only at the time of the cross examination of the complainant, has convicted the accused without evaluating and appreciating the evidence which had come on record in its proper perspective. The learned Counsel submitted that in the absence of such evaluation and appreciation of the evidence by the Trial Court, the lower Appellate Court was right in setting aside the conviction as the lower Appellate Court has gone threadbare into the evidence and has recorded its findings only thereafter. The learned Counsel submitted that in the absence of such evaluation and appreciation of the evidence by the Trial Court, the lower Appellate Court was right in setting aside the conviction as the lower Appellate Court has gone threadbare into the evidence and has recorded its findings only thereafter. The learned Counsel submitted that the complainant has failed to prove by evidence that the said amount of Rs.35,00,000/-was advanced to the accused. The learned Counsel further submitted that the lower Appellate Court was right in drawing an adverse inference against the complainant for the non production of income tax returns. The learned Counsel lastly submitted that the view taken by the lower Appellate Court in the context of the evidence which is on record cannot be said to be perverse or improbable and therefore no interference was called for with the orders of acquittal. 10. Before proceeding further it would be necessary to see the averments made in the complaint filed by the complainant i.e. Appellant abovenamed. Apart from the fact that the complaint contains the statement of the various amounts allegedly advanced to the accused by the complainant and the said Vassudev S. Parab, the complaint is conspicuously silent as regards any reference to the partnership business between the accused and the complainant or to the Acknowledgement of Debt or to the receipts. In fact in the cross examination of the complainant, it has come on record that the receipts were not relied upon in the complaint in view of the fact that the said receipts were with his Advocate. Therefore, save and except mentioning the amounts which were advanced to the accused by the complainant and the cheque issued by the accused which was dishonoured, the complaint does not contain any other details which have come in the cross examination of the complainant. This fact therefore would have to be borne in mind while adjudicating the above Appeals. The complainant examined himself. It would therefore be necessary to refer to the evidence of the complainant (PW1). He has deposed that the accused had borrowed various sums which have been mentioned in the earlier part of this order and had also borrowed a sum of Rs. 8,00,000/- from Vassudev S. Parab. PW1 has further deposed that the accused had agreed to repay the same with interest. The total amount borrowed by the accused according to the complainant was Rs.35,00,000/-. 8,00,000/- from Vassudev S. Parab. PW1 has further deposed that the accused had agreed to repay the same with interest. The total amount borrowed by the accused according to the complainant was Rs.35,00,000/-. The complainant has relied upon the receipts at Exhibit 30 Colly which according to the complainant have been issued by the accused acknowledging the receipt of each amount on the date mentioned in the receipt. The second witness PW2 Vassudev Parab has supported the case of the complainant in respect of the various amounts advanced by the complainant and has stated that he had personally advanced an amount of Rs.8,00,000/- to the accused. The aforesaid evidence therefore prima facie leads to a conclusion that the accused had borrowed the amounts as claimed by the complainant and it is towards its repayment that he had issued the three cheques in question total amounting to Rs.35,00,000/-. At this stage, it would be relevant to refer to the judgment of the Apex Court reported in 2008 (4) SCC 54 , in the matter of Krishna Janardhan Bhat V/s Dattatraya G. Hegde, on the point of presumption under Section 139 of the Act. Paragraphs 29, 30, 31, 32, 33, 34, 35, 36 and 41 of the said report are material and are reproduced herein under : “29. Section 138 of the Act has three ingredients viz: (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. 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. 31. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. 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. 31. The courts below, as noticed hereinbefore, 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 an accused and that of the prosecution in a criminal case is different. 33. In Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal interpreting Section 118 (a) of the Act, this Court opined : (SCC pp.50- 51, para 12) “ 12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges in 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 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.” 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 an accused in “preponderance of probabilities”. Inference of preponderance of probabilities can be drawn not only form the materials brought on record by the parties but also by reference to the circumstances upon which he relies. 35. A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidence on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. 36. In M. S. Narayana Menon v. State of Kerala it was held that once the accused is found to discharge his initial burden, it shifts to the complainant. 41. Mr. Bhat relied upon a decision of this Court in Hiten P. Dalal v. Bratindranath Banerjee wherein this Court held; (SCC pp.24-25, paras 22-23 ) “22. ....... Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, 'after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.” 11. It would also be relevant to refer to the judgment of this Court reported in 2008(1) Mh.L.J. (Cri.) 517, in the matter of Vinay Parulekar V/s Pramod Meshram. Para 14 of the said judgment is material and is reproduced herein under :- “ Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that it is not necessary of the accused to disprove the existence of consideration by way of direct evidence. 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. The accused can raise a probale defence from the material brought on record by him, so also by the complainant himself. Though it is obligatory on the Court to raise presumption contemplated under Section 118, 238 and 139 in every case. Where the factual basis for raising of the presumption has been established, what is needed for the accused is to raise a probable defence or that the consideration”. 12. Though it is obligatory on the Court to raise presumption contemplated under Section 118, 238 and 139 in every case. Where the factual basis for raising of the presumption has been established, what is needed for the accused is to raise a probable defence or that the consideration”. 12. In so far as the judgment of the Apex Court is concerned, the said judgment lays down a proposition that the Section 139 raises a presumption that the cheques have been issued for the discharge of a debt or liability and that the existence of legally enforceable debt is not a matter of presumption under Section 139 of the said Act. The said judgment further lays down that whereas the prosecution must prove the guilt of the accused beyond reasonable doubt, the standard of proof so as to prove the defence on the part of an accused is preponderance of probabilities. The inference of preponderance of probabilities can be drawn not only from the material brought on record, but also by reference to the circumstances upon which he relies. The rebuttal by the accused does not have to be conclusively adduced but such evidence has to be adduced by him in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of probability being that of a prudent man. It is on the touchstone of the judgment of the Apex Court followed by this Court in the judgment ( supra ) that the material on record in the instant case would have to be siffed and it would have to be seen whether the accused has rebutted the presumption under Section 139 of the said Act. 13. In the said context the defence raised by the accused would have to be considered, it is the defence of the accused that he and the complainant were business partners of the firm registered in the name of M/s Kulmaya Mineral and Transport Contractors. The said firm was established on 8.6.2005 and was registered on 10.6.2005. It is the case of the accused that he is illiterate. It is further his case that all the cheques were lying in the office of the firm and he does not know how the complainant obtained the signatures on the said cheques and how he came into the possession of the same. It is the case of the accused that he is illiterate. It is further his case that all the cheques were lying in the office of the firm and he does not know how the complainant obtained the signatures on the said cheques and how he came into the possession of the same. It is the case of the accused that the receipts produced at Exhibit 30 Colly are fabricated. It is further the case of the accused that in the course of the partnership business the complainant has obtained his signatures on the cheques and the papers when he was looking after the business of the said firm. The accused in the course of his deposition has produced the register of partnership at Exhibit 52 issued by the Registrar of Firms which proved that the accused, complainant and the said Vassudev S. Parab had entered into a partnership in the name of M/s Kulmaya Mineral and Transport Contractors. The said register further revealed that the said firm was established on 8.6.2005 and was registered on 10.6.2005. The Deed of Partnership was also produced at Exhibit 53. It discloses that the accused had invested Rs.10,000/-, the complainant Rs.3,00,000/-and the said Vassudev S. Parab Rs.50,000/-and that the said partnership was constituted to carry on the business of resale of iron ore and transport contractor and allied activities. The said register further discloses that the accused is a resident of Sarvan Dhawaskar Vaddo, Bicholim Goa, that the complainant is a resident of Radhakrishan Niwas, Vasco- Da-Gama, Goa, and that Vassudev S. Parab is a resident of Madapai, Marcel Goa. The register of partnership and the Deed of Partnership disclose that the principal place of business of the firm was Radhakrishnan Niwas, New Vadem, Vasco-De-Gama i.e. the residential address of the complainant. It is undisputed that the account of the firm was opened in the UTI Bank at Vasco branch. The aforesaid evidence therefore demonstrates that the accused, complainant and the said Vassudev Parab were the partners in the said firm of M/s Kulmaya Mineral and Transport Contractors and that the complainant was to look after the accounts and paper work of the said firm since the accused was illiterate and therefore could not be expected to personally look after the accounts or do other paper work. These facts are conspicuously absent in the complaints. These facts are conspicuously absent in the complaints. It would be also pertinent to note that in terms of clause 11 of the Partnership Deed, the partners were entitled to raise funds by way of loans from banks, financial institutions, themselves, relatives and friends. 14. The said clause therefore indicates that the firm was entitled to raise funds by way of loans from banks, financial institutions, from the partners or their relatives. Considering the said clause in the Partnership Deed and looking to the nature of the business which the firm was to carry out the possibility of the complainant obtaining blank cheques from the accused or obtaining his signature on blank papers cannot be ruled out. It would also be significant to note that all the cheques purportedly issued by the accused are dated January, 2006. 15. Now coming to the receipts at Exhibit 30 Colly, it would be pertinent to note that the contents are identical except for the amount The dates on the said receipts and the place are written in hand. The perusal of the said receipts also reveal that the material printed is identical as also the contents. This coupled with the fact that the complainant (PW1) has admitted that the said receipts were given to him subsequently i.e. after a month or so. As also coupled with the fact that there is no reference in the complaint as originally filed and non production of the receipts at the time of examination in chief. as also considering the fact that the said receipts were produced in the cross examination only after the complainant was directed to produce the same leads to a strong presumption that the accused has signed all the receipts at one time while they were blank. The aforesaid aspect therefore is a circumstance which in my view creates a suspicion as regards the amount of Rs.35,00,000/-allegedly advanced by the complainant. Another aspect which to my mind is relevant in so far as the case of the complainant is that he claims to have advanced the said amount of Rs.35,00,000/-to the accused. The complainant in his deposition has stated that he met the accused for the first time in the month of May, 2005 and before that he did not know the accused nor had any contact or any connection with him. The complainant in his deposition has stated that he met the accused for the first time in the month of May, 2005 and before that he did not know the accused nor had any contact or any connection with him. He has also stated that he came to know the accused through Vassudev Parab and that the said Vassudev Parab had introduced him to the accused as the accused had a business proposal and Vassudev Parab is the complainant's cousin and carries on wholesale business in flowers. In so far as Vassudev Parab who is PW2, he has stated that he had introduced the accused to the complainant on 11.5.2005 as the accused had some business proposal to be shown to the complainant. It is further in his evidence that on 12.5.2005 various amounts as mentioned in the complaints were given to the accused and that he had personally given Rs.8,00,000/- to the accused. What is significant in so far as the evidence of PW2 Vassudev Parab is concerned that he also admits that he knew the accused only from the year 2005 and that he had no idea as to what business the accused was conducting and one of his friends had introduced him to the accused at Sankhlim and that thereafter he introduced the complainant to the accused. The upshot of the said evidence is that both the complainant and the said Vassudev Parab did not know the accused prior to 11.5.2005. They also did not know his business. It is therefore impossible to believe that either the complainant or said Vassudev Parab would advance such a huge amount of Rs.5,00,000/-on the next day i.e. on 12.5.2005 to a person who was almost a stranger to them and have advanced various other sums subsequent to 12.5.2005. The most unusual thing further is that the said Vassudev Parab had advanced Rs.8,00,000/-to the accused on the guarantee of the complainant. When both the complainant and the said Vassudev Parab came in contact with the accused only from 11.5.2005 and when they hardly knew his credentials, it makes one wonder how such a huge amount of Rs.8,00,000/-was lent by the said Vassudev Parab on the guarantee of the complainant who in so far as accused is concerned was similarly situated as the said Vassudev Parab. Apart from this it would also be relevant to note that the complainant in his cross examination has stated that though the accused committed default in payment, still further amounts were advanced to the accused. The aforesaid facts in my view gives a serious dent to the case of the complainant that he had advanced Rs.35,00,000/-to the accused. Another aspect which is required to be taken into consideration is that though in the Partnership Deed at Exhibit 53, the said Vassudev Parab is shown as a partner. In the cross examination, it has come in evidence that he is a Government servant. A Government servant is prohibited by rules from entering into any business while in service. The said Vassudev Parab has stated in his evidence that he had paid the said amount of Rs.8,00,000/-in three instalments, two instalments of Rs.3,00,000/- and one instalment of Rs.2,00,000/-. Most significantly he has not been able to state on what dates he had given the said amounts to the accused. He has further stated that he had given the said amount in cash. It is further recorded in evidence that his wife carries on wholesale business in flowers, and that he had advanced said amount to the accused from the said business, that the said business is registered with the Panchayat and that he can produce the document of registration. However, he has admitted that his wife does not pay income tax and further has admitted that he has not obtained any receipt from the accused when he gave Rs.8,00,000/-. In the context of the material which has come on record the evidence of the said PW2 Vassudev Parab cannot be said to be credible or trustworthy in so far as the amount of Rs.8,00,000/- is concerned. 16. Now coming to the evidence of the complainant (PW1). The said PW1 has deposed that the part of the amount of Rs.35,00,000/-was brought by him from his business, part of the same was advanced by him by obtaining advances from Shri Pravin, friends and family and an amount of Rs.8,00,000/-was advanced by said Vassudev Parab, PW2. Though he says that the part of the amount was obtained from one Shri Pravin by way of an advance, the said Shri Pravin has not been examined nor any document evidencing such borrowing from Shri Pravin has been produced. Though he says that the part of the amount was obtained from one Shri Pravin by way of an advance, the said Shri Pravin has not been examined nor any document evidencing such borrowing from Shri Pravin has been produced. There is therefore no evidence as regards the paying capacity of the said Shri Pravin or evidence about borrowing from the said Shri Pravin and, therefore, alleged borrowing from the said Shri Pravin is not proved. There is also absolutely no evidence on record adduced by the complainant as regards how he has raised the said amount of Rs.35,00,000/-. It would also be relevant to note that it is the case of the complainant that though Rs.8,00,000/-was advanced by Vassudev Parab, the three cheques allegedly issued by the accused for the amount of Rs.35,00,000/-were all in the name of the complainant. If part of the amount of Rs.35,00,000/- was advanced by the said Vassudev Parab, why all the cheques were issued in the name of the complainant is difficult to understand. Another thing which is required to be noted is that it is the case of the complainant that the accused had agreed to pay the said amount of Rs.35,00,000/- with interest. The cheques however allegedly issued by the accused are for the principal amount of Rs.35,00,000/- and does not include any interest components. The said aspect of non inclusion of the interest is therefore a strong circumstance which militates against the case of the complainant and in favour of the accused. 17. Though it is the case of the complainant that the amount of Rs.35,00,000/-is reflected in his accounts. The books of account were not produced by him. Further the income tax returns for the year 2005-2006 were also not produced. The lower Appellate Court was therefore justified in drawing an adverse inference against the complainant and in the said circumstances upholding the defence of the accused. 18. The books of account were not produced by him. Further the income tax returns for the year 2005-2006 were also not produced. The lower Appellate Court was therefore justified in drawing an adverse inference against the complainant and in the said circumstances upholding the defence of the accused. 18. The final nail in the coffin in the case of the complainant is that in terms of Section 269SS of the Income Tax, no person shall after 30th June, 1984 take or accept from any person any loan or deposit otherwise than by an account payee cheque or account payee draft if the amount of such loan or deposit or the aggregate amount of such loan or deposit on the date of taking is Rs.20,000/-or more, Section 271D of the Income Tax Act provides for the penalty for violation of Section 269SS. Since in the instant case an amount of Rs.35,00,000/- is allegedly advanced by cash, the same is violation of Section 269SS of the Income Tax. Since the existence of a legally enforceable debt is a sine qua non for invoking Section 138 of the said Act, in my view, the basic requirement being absent, the accused was entitled toacquittal on the said ground. 19. It would also be relevant to note that it is the case of the complainant that the accused had issued cheques which were duly filled in however, in his cross examination he has stated that he does not know who had filled the said cheques. Injuxta position, it is the case of the accused right from the reply at Exhibit 10 as well as in his deposition that the cheques were only signed by him and when they were handed over to the complainant they were blank. A perusal of the cheques will show the handwriting in the signature of the accused is different then the handwriting appearing in the blanks in the cheques. It is also not in dispute that the accused is an illiterate person, therefore, the said fact raises a strong suspicion that blank cheques in fact were handed over to the complainant which the complainant has misused. By the aforesaid evidence and the circumstances as mentioned above, in my view, the accused has rebutted the presumption under Section 139 of the said Act and has probabilised his defence. By the aforesaid evidence and the circumstances as mentioned above, in my view, the accused has rebutted the presumption under Section 139 of the said Act and has probabilised his defence. The accused in my view has successfully probabilised his defence by showing the non existence of liability and consideration. Whereas the complainant has failed to prove by cogent evidence, firstly as to how he raised Rs.35,00,000/-and secondly the lending of the said amount to the accused. 20. The lower Appellate Court on an evaluation and re-appreciation of the evidence has come to a conclusion that the Trial Court erred in convicting the accused by merely recording the conclusion without evaluating or weighing the evidence as also without dealing with the circumstances on which the accused relied to establish his defence. The lower Appellate Court in its Appellate jurisdiction was entitled to evaluate the evidence and record its findings on the aforesaid aspects. Considering the evidence on record, in my view, the findings of the lower Appellate Court on an appreciation of evidence cannot be said to be perverse or view taken by the lower Appellate Court cannot be said to be a view which is impossible to be taken on the basis of the material on record. 21. In that view of the matter, there is no merit in the aforesaid Appeals which are accordingly dismissed. The bail bonds of the accused stand cancelled.