Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 4327 (MAD)

C. Duraisamy v. K. Balakrishnan

2014-11-19

R.S.RAMANATHAN

body2014
Judgment 1. The complainant in C.C.No.151 of 2006 on the file of the District Munsif cum Judicial Magistrate, Kidumudi is the appellant. The complainant filed the aforesaid complaint against the respondents under Section 138 of the Negotiable Instruments Act. By judgment dated 15.04.2009, the learned Judicial Magistrate convicted the respondents and sentenced them to undergo one year simple imprisonment and to pay compensation of Rs.1,00,000/-to the complainant. Aggrieved by the said judgment, the respondents filed Appeal in C.A.No.70 of 2009 on the file of the Additional District Court and Fast Track Court No.1, Erode, and the learned Additional Sessions Judge set aside the conviction and sentence, and allowed the Appeal and aggrieved by the same the present Appeal is filed by the complainant. 2. The case of the complainant / appellant is that he knew the respondents and on 21.5.2006, the respondents borrowed a sum of Rs.1,00,000/-from him and on that date, they issued a post dated cheque dated 21.7.2006 drawn on South Indian Bank, Pollachi Branch, for the said amount and when the appellant presented the cheuqe for collection on 21.7.2006, the cheque was returned with an endorsement ‘insufficient funds’ and after issuing a statutory notice to the respondents on 2.8.2006, the respondents sent a reply but did not come forward to settle the amount and therefore, a complaint was filed by the complainant. 3. During trial, the complainant/appellant examined himself as PW.1 and marked 9 Exhibits. On the other hand, the first respondent examined himself as DW.1 and marked 6 Exhibits. 4. The trial Court believed the evidence of PW.1 and drawn presumption under Section 118(a) and 139 of the Negotiable Instruments Act in favour of the complainant / appellant and held that the respondents failed to prove their case by probabilities and the defence stated by the respondents cannot be believed and convicted the respondents by relying upon the judgments reported in 2008 CRI.L.J.434 in the matter of John K.John v. Tom Varghese and another and (2004) 2 SCC 235 in the matter of Goa Plast (P) Ltd vs Chico Ursula D'Souza and sentenced them to imprisonment for one year and to pay compensation of Rs.1,00,000/-. 5. On the contra, the learned Additional Sessions Judge, relied upon the judgment of the Hon'ble Supreme Court reported in 2008 CRI. L.J. 434 in the matter of Johan K. John Vs. 5. On the contra, the learned Additional Sessions Judge, relied upon the judgment of the Hon'ble Supreme Court reported in 2008 CRI. L.J. 434 in the matter of Johan K. John Vs. Tom Verhese and another, and 2008 MLJ (Cri) 192, believed the evidence of DW.1 and the Exhibits produced by the respondents and held that the respondents have rebutted the presumption by making out probable defence and the appellant failed to prove that he has got the means to pay the sum of Rs.1,00,000/- to the respondents and therefore, the complainant/appellant failed to prove that the cheque was given towards legally enforceable liability and set aside the conviction and sentence and allowed the appeal. 6. The learned counsel for the appellant submitted that the lower appellate Court without properly appreciating the law laid down by the Hon'ble Supreme Court as regards the presumption and the evidence adduced by the accused to rebut the presumption erred in holding that the appellant failed to prove that he had the means to advance Rs.1,00,000/-to the respondents and the respondents have made out a probable defence through Exs.D.1 to D.6 through DW.1. He submitted that the respondents did not dispute their signature in the cheque and under Section 118 and 139 of the Negotiable Instruments Act, once a cheque has been issued, presumption can be drawn that the cheque was issued for a lawful consideration and it is for the drawer to rebut the presumption by producing materials which would make it probable that the cheque could not have been issued as alleged by the complainant and in this case, the evidence adduced by the respondents would prove that the cheque was issued towards lawful consideration and the respondents failed to make out a probable defence and these aspects were not properly appreciated by the learned lower appellate Judge. He further submitted that the lower appellate Judge erred in holding that the appellant failed to prove that he had means to advance Rs.1,00,000/- and the appellant is bound to prove the means only when the defence is able to make out a probable case and when the defence was not able to make out a probable case, the presumption drawn in favour of the complainant by the trial Court becomes absolute and the respondents ought to be convicted. He submitted that the case of the respondents is that they did not know the appellant and they had transaction with R.Gayathri Finance and towards their liability to the said finance company, they issued some signed blank cheques and the complainant is the agent of the said Gayathri Finance and at the instance of the said Gayathri Finance, the said cheque was presented by the appellant as if the respondents borrowed Rs.1,00,000/- from the complainant. It is their further case that in the reply notice Ex.P.8 sent by the respondents, it is stated that the respondents were in financial crisis and therefore, they approached one Jayapal, broker for the said Gayathir Finance, who informed him that the Finance Company would not lend money to an individual and they would lend money to a group of persons and therefore, as per the advice of the said Jayapal, the first respondent gathered 3 persons, namely, V.Easwaran, Senguttaipalayam, another Easwaran, Malayandipattinam and Radha and all of them were having bank accounts and at the instance of Jayapal, the first respondent availed cheque book facility and gave cheque book to Jayapal and they borrowed money of Rs.40,000/- from the Finance and gave five cheques signed by the first and second respondents as security without filling cheques and one cheque was used by the appellant/complainant and another cheque was used by one Nagaraj who filed a case against the respondents in C.C.No.211 of 2005 on the file of the District Munsif cum Judicial Magistrate, Kodumudi and that case ended in acquittal holding that the complainant in that case failed to prove passing of consideration and the appellant also filed a case in C.C.No.187 of 2004 on the file of the District Munsif cum Judicial Magistrate, Kodumudi against V.Easwaran and Janaki Easwaran and that case also ended in acquittal and therefore, the defence rebutted the presumption. He submitted that except marking of the judgment in C.C.No.211/2005 and complaint in C.C.No.211/2005, the first respondent did not examine any of those persons who approached the Finance along with him for availing loan facility and the marking of complaint in C.C.No.211/2005 and judgment rendered would not falsify the case of the complainant. He submitted that except marking of the judgment in C.C.No.211/2005 and complaint in C.C.No.211/2005, the first respondent did not examine any of those persons who approached the Finance along with him for availing loan facility and the marking of complaint in C.C.No.211/2005 and judgment rendered would not falsify the case of the complainant. Even though the case in C.C.No.187/2004 filed by the complainant against Easwaran and his wife was dismissed, that would not lead to the presumption that the cheque was obtained in the manner as stated by the defence and therefore, submitted that the respondents failed to lead any evidence to rebut the presumption and the evidence adduced by the respondents is not sufficient to make out a probable defence and these aspects were not properly appreciated by the learned appellate Judge and the lower appellate Judge, without considering the judgments rendered in the case of Bharat Barrel and Drum Manufacturing Company v. Amin Chand Payrelal [AIR 1999 SUPREME COURT 1008] and Hiten P.Dalal Versus Bratindranath Banerjee [2001 Supreme Court Cases (Cri) 960], erred in allowing the Appeal and dismissing the complaint and therefore, the Appeal is liable to be allowed and the respondents ought to be convicted. 7. The learned counsel appearing for the respondents submitted that the lower appellate Judge rightly appreciated the law on this aspect and having regard to the evidence of PW.1 and the probability of defence raised by the respondents, which were sufficient to rebut the presumption rightly held that the complainant failed to prove that he had the means to pay the amount and in the absence of any proof by the complainant that he had the means to pay the amount, it cannot be stated that the cheque was given towards legally enforceable liability and therefore, the lower appellate Court rightly allowed the appeal. He further submitted that the Appeal is against the order of acquittal by the learned Additional Sessions Judge and in the case of appeal against acquittal, the appellate court, normally, will not interfere with the order of acquittal when two views are possible and in this case, the lower appellate Court rightly held that the respondents rebutted the presumption by examining DW.1 and also by marking 6 Exhibits and when the presumption is rebutted, the burden shifts on to the complainant to prove that he had the means to pay and he has not filed any thing and considering all these aspects, the lower appellate Court rightly acquitted the respondents. He relied upon the judgments reported in 2008 CRI.L.J.434 in the matter of John K.John v. Tom Varghese and another; (2008) 1 Supreme Court Cases 258 in the matter of K.Prakashan Versus P.K.Surenderan; and (2013) 3 Supreme Court Cases 86 in the matter of Vijay Versus Laxman and another, and submitted that the judgments reported in AIR 1999 SUPREME COURT 1008 and 2001 Supreme Court Cases (Cri) 960 supra was considered and therefore, the lower appellate Court rightly allowed the appeal. He further submitted that the first respondent issued reply wherein he has stated that he had not received any amount from the appellant and the cheque was issued to the Finance and the complainant was instigated by the Finance to file a case and that was also probablised by marking the judgment in C.C.No.211/2005 and complaint in C.C.No.187 of 2004. He further submitted that in C.C.No.211/2005, the subject matter of cheque was bearing No.295325 dated 10.9.2005. In the present case, the subject matter of cheque was bearing No.295324 dated 21.7.2006 and that is the subject matter of the present Appeal and that would also prove that the cheque bearing No.295324 would not have been given on 21.7.2006 as alleged by the appellant and all these aspects were properly appreciated by the lower appellate Court. He therefore submitted that the burden of proof to rebut the presumption is not so strict on the defence and it is enough if the defence is able to make out probable case and in this case, by adducing evidence and marking documents, the defence rebutted the presumption. Therefore, the lower appellate Court rightly allowed the Appeal and therefore, there is no need to interfere with the well considered judgment of the lower appellate Court. Therefore, the lower appellate Court rightly allowed the Appeal and therefore, there is no need to interfere with the well considered judgment of the lower appellate Court. 8. Having regard to the submissions of both the learned counsel, we will have to see “(i) whether the complainant / appellant is entitled to draw the presumption that the cheque was issued for a lawful consideration and (ii) whether the respondents rebutted the presumption. 9. Before going into the facts of the case, let me analyse the law of presumption under Sections 118 and 139 of the Negotiable Instruments Act. (i) In Bharat Barrel and Drum Manufacturing Company v. Amin Chand Payrelal [AIR 1999 SUPREME COURT 1008], it has been held as follows:- “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 consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of 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 dis-entitle 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 existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard.” (ii) In Hiten P.Dalal Versus Bratindranath Banerjee [2001 Supreme Court Cases (Cri) 960], it has been held as follows:- “20. ....The presumption which arises under Section 138 provides more specifically that where any cheque drawn by a person on an account for payment of any amount of money for the discharge in whole or in part of any debt or other liability, is returned by the drawee bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque, such persons shall be deemed to have committed an offence and shall be punished with imprisonment for a term which may extend to twice the amount of the cheque, or with both. The nature of the presumption under Section 138 is subject to the three conditions specified relating to presentation, giving of the notice and the non payment after receipt of notice by the drawer of the cheque. All three conditions have not been denied in this case. 21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. All three conditions have not been denied in this case. 21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that "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". The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 22. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61 , it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. 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. In other words, provided the facts required to form the basis of a presumption of law exists, 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. 23. In other words, provided the facts required to form the basis of a presumption of law exists, 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'. (iii) In the judgment reported in 2001 Supreme Court Cases (Cri) 960, the Hon'ble Supreme Court relied upon the judgment reported in AIR 1958 Supreme Court 61 in the matter of State of Madras V. A. Vaidyanatha Iyer. In the aforesaid judgment, the Hon'ble Supreme Court, while interpreting the words, “shall presume” and may presume as found in the Evidence Act, held that the presumption of law cannot be successfully rebutted by merely raising probability however reasonable when the actual fact is the reverse of the fact which is presumed. Something more than raising a reasonable probability is required for rebutting the presumption of law. This was approved by the Constitution Bench in the judgment reported in AIR 1964 SC 575 in the matter of Dhanvantrai Balwantrai Desai vs. State of Maharashtra, wherein it is held as follows:- 13. "...the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted." (iv) In the judgment reported in (2008) 1 Supreme Court Cases 258 in the matter of K.Prakashan Versus P.K.Surenderan, the Hon'ble Judges relied upon the judgment reported in (2006) 6 SCC 39 in the matter of M.S.Narayana Menon v. State of Kerala, and held as follows:- “13. The Act raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-a-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision. 14. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-a-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision. 14. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability.” The Hon'ble Judges also relied upon the judgment reported in (2007) 5 SCC 264 in the matter of Kamala S. v. Vidhyadharan, wherein it has been held as follows:- “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: (M.S.Narayana Menon's case (2006) 6 SCC 39 @ 51, para 33). 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. Having regard to the facts of that case, the Honb'le Supreme Court held in those cases that the accused rebutted the presumption and the complainant failed to prove that the cheque was issued for a legally enforceable liability. (v) Similarly, in the judgment reported in (2014) 2 Supreme Court Cases 236 in the matter of John K.Abraham Versus Simon C. Abraham and another, having regard to the facts of that case, it was held that in order to draw presumption under Section 118 r/w 139 of the Negotiable Instruments Act, a burden was heavily upon the complainant to show that he had the requisite funds for having advanced money to the accused. In that case, the complainant was not able to state the date on which the amount was advanced, when the cheque was issued and he was not in a position to state whether the cheque was in the hand writing of the accused or by some other persons and considering those aspects, the Hon'ble Judges held as stated above. (vi) In the judgment reported 2008 CRI. L.J 434 supra, having regard to the conduct of the complainant, his case was disbelieved. In that case, the relationship between the complainant and the accused was admitted and the accused was a subscriber of chits run by the chit company and the accused was not in a position to pay the chit subscription and the cheques given by the accused were misused and having regard to the suppression of running of chit by the complainant, his case was not believed holding that he must have come with clean hands. Further, having regard to the transaction, the Hon'ble Judges held that no instrument was executed when huge amount was advanced would lead to the conclusion that the amount was not advanced as alleged by the complainant. (vii) In the judgment reported in (2013) 3 Supreme Court Cases 86 in the matter of Vijay Vs. Laxman and another, having regard to the facts of that case, after referring to the judgment reported in AIR 1999 SUPREME COURT 1008 and 2001 Supreme Court Cases (Cri) 960, the case of the complainant was not believed and admittedly, there was altercation between the complainant and the accused and immediately, on the next day, the cheque was presented which was already given for security and the said fact was admitted by the complainant. 10. According to me, having regard to the facts in those cases, the Hon'ble Supreme Court, in the cases reported in (2013) 3 Supreme Court Cases 86, 2008 CRI.L.J.434, (2008) 1 Supreme Court Cases 258 and (2014) 2 Supreme Court Cases 236 held that the accused has rebutted the presumption and the complainant has failed to prove that he advanced money and the cheque was issued for a legally enforceable liability. Further, it is seen from those judgments, that only after coming to the conclusion that the accused has rebutted the presumption, the Hon'ble Supreme Court held that the complainant failed to prove that the amount was borrowed by accused and the cheque was issued towards a legally enforceable liability. In other words, the Hon'ble Supreme Court raised a presumption in favour of the complainant initially and after holding that the accused rebutted the presumption by probable defence, held that the complainant failed to prove the passing of consideration and the cheque was issued for legally enforceable liability. 11. According to me, though the burden of proof to rebut the presumption is not so strict on the defence and it is enough if he is able to make out a probable defence, having regard to the judgment rendered in AIR 1999 SUPREME COURT 1008] and Hiten P.Dalal Versus Bratindranath Banerjee [2001 Supreme Court Cases (Cri) 960, the bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. 12. Further as held in AIR 1964 Supreme Court 575 supra, the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. As the judgment rendered in AIR 1964 Supreme Court 575 is by a Constitution Bench and the judgment rendered in 2001 Supreme Court Cases (Cri) 960 by 3 Hon'ble Judges of the Supreme Court, this Court is bound to follow the law laid down in those judgments in preference to the judgments referred to by the learned counsel for the respondents. 13. Bearing these principles in mind, we will have to see whether the respondents have rebutted the presumption. 14. 13. Bearing these principles in mind, we will have to see whether the respondents have rebutted the presumption. 14. As rightly submitted by the learned counsel for the appellant, the issuance of cheque is admitted by the respondents and therefore, under Sections 118 and 139 of the Negotiable Instruments Act, presumption shall be drawn in favour of the complainant regarding passing of consideration. Therefore, we will have to see whether the respondents have rebutted the presumption. 15. It is stated in Ex.P.8 reply notice that the respondents were in financial crisis, they approached one broker Jayapal and he informed them that unless two or three persons joined, the first respondent will not get a loan and therefore, the first respondent gathered three persons, namely, V.Easwaran, Senguttaipalayam, another Easwaran, Malayandipattinam and Radha and all of them availed loan and for the loan availed by the first respondent from Finance, R.Gayathri, five cheques were issued for a sum of Rs.40,000/-and the same was misused by the Finance with the help of the complainant. It is also stated that the loan availed from Gayathri Finance was discharged and the cheques were not returned. To make it probable, even accepting the arguments of the learned counsel for the respondents, the respondents have not examined the said Easwarans and Radha to the effect that they formed a group and availed the loan from Gayathri Finance. Though it is stated that the loan availed from Gayathri Finance was discharged, no proof was adduced by the respondents except marking 3 receipts for payment of Rs.800/- each which are dated 28.2.2002, 30.11.2001 and 31.1.2002. No notice was issued by the respondents to Gayathri Finance for return of the cheque, after the loan was discharged. Therefore, in the absence of issuance of any notice to the Finance for return of the cheque after the discharge of the loan, the non-examination of 3 persons who joined with the first respondent for availing the loan and failure to prove the discharge of loan availed from Gayathri Finance would lead to the conclusion that the respondents did not rebut the presumption in the manner known to law as laid down by the Hon'ble Supreme Court in the judgment reported in AIR 1999 SUPREME COURT 1008 and 2001 Supreme Court Cases (Cri) 960 supra. The marking of complaint in CC No.187 of 2004 where the appellant is the complainant against Easwaran and Janaki Easwaran and the dismissal of that complaint will not probablise the case of the respondents herein. Similarly, the judgment in C.C.No.211/2005 wherein one Nagaraj was the complainant and the respondents are the accused would not also probablise the case of the respondents herein. Therefore, failure to examine Easwarans or Radha and failure to issue a notice to the Gayathri Finance calling jupon them to return the cheques, and failure to prove that the debt payable to Finance was discharged would lead to the conclusion that rebuttal evidence adduced by the respondents would not suffice to rebut the presumption drawn in favour of the complainant. 16. The lower appellate Judge erred in presuming that the cheque in question would not have been issued having regard to the subject matter of cheque in C.C.No.211 of 2005 filed by one Nagaraj. Admittedly, cheque No.295325 is the subject matter of C.C.No.211 of 2005 dated 10.9.2005. The subject matter of present Appeal is Cheque No.295324 dated 21.7.2006. Merely, because earlier cheque was dated 21.7.2006 and the later chque was dated 10.9.2005 would not lead to the conclusion that the cheque could not have been issued when the complainant are two different persons. It is also probable that the first respondent with a view to cheat both the persons issued cheques in that manner and on that account, it cannot be held that the cheque was not issued for a legally enforceable liability. 17. Therefore, having regard to the law laid down by the Hon'ble Supreme Court in the judgments reported in AIR 1999 SUPREME COURT 1008 and 2001 Supreme Court Cases (Cri) 960 and having regard to the facts of this case, I hold that the presumption drawn in favour the appellant was not rebutted by the respondents by adducing evidence which amounts to proof and the defence adduced by the respondents would not rebut the presumption drawn in favour of the appellant. Therefore, there is no necessity for the appellant to prove that he had the means to advance the amount and the cheque was issued against legally enforceable liability. 18. Therefore, there is no necessity for the appellant to prove that he had the means to advance the amount and the cheque was issued against legally enforceable liability. 18. Therefore, the judgment dated 28.07.2009 made in C.A.No.70 of 2009 on the file of the Additional District and Fast Track Court No.1, Erode is set aside and the judgment dated 15.04.2009 made in C.C.No.151 of 2006 on the file of the District Munsif-cum-Judicial Magistrate, Kodumudi is sustained. The Criminal Appeal is allowed.