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2023 DIGILAW 617 (HP)

Amar Dev Verma v. Veer Daily Needs

2023-12-29

RAKESH KAINTHLA

body2023
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 14.07.2014 passed by learned Additional Chief Judicial Magistrate-II, Shimla, vide which the complaint filed by the appellant (complainant before learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the complainant is a resident of Shanti Bhawan, post office building Tutu, where he is doing his work. The complainant is on friendly terms with the accused for 7-8 years. The accused no. 1 is a sole proprietorship firm in the name & style of M/s Veer Daily Needs and Karyana Store and accused no. 2 is the proprietor of the firm. The accused no. 2 approached the complainant in March 2009 for a loan of Rs.3,10,000/-. The complainant agreed and advanced an amount of Rs.3,10,000/- in March 2009 after arranging it from his relatives and friends. Accused No.2 undertook to repay the amount by the end of October 2009. Accused no.2 issued a post-dated cheque of Rs.3,10,000/- in favour of the complainant drawn on State Bank of India, Boileauganj in the discharge of his legal liability. The complainant presented the cheque before Punjab National Bank, Totu, Shimla, who sent it to the State Bank of India for realization; however, the cheque was dishonoured with the endorsement ‘account closed’. The complainant served a notice upon the accused by means of a registered A.D. cover and certificate of posting. The notice was duly served upon the accused. The accused failed to make the payment despite the receipt of the notice; hence, the complaint was filed to take action against the accused. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act. The accused pleaded not guilty and claimed to be tried. 4. The complainant examined himself (CW1), Netar Singh (CW2), Prithvi Pal Singh (CW3), and Alkesh Sain (CW4). 5. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act. The accused pleaded not guilty and claimed to be tried. 4. The complainant examined himself (CW1), Netar Singh (CW2), Prithvi Pal Singh (CW3), and Alkesh Sain (CW4). 5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that the complainant was known to him. He admitted that he is the proprietor of Veer Daily Needs. He admitted that the cheque was dishonoured due to insufficient funds. He admitted that he had received the notice and stated that he had replied to the notice. He stated that he had handed over a cheque of Rs.10,000/-. The amount was changed. The cheque was without any date. The accused examined Thakur Singh Verma (DW1) and Prem Pal (DW2) in defence. 6. The cheque was also sent for comparison and the report of the handwriting expert was received. 7. Learned Trial Court held that the cheque carries a presumption of consideration under Section 139 of the Negotiable Instruments Act and the burden lies upon the accused to rebut this presumption. The accused has taken a defence that a cheque was issued for Rs.10,000/- and was tampered with. This was corroborated by the report of the handwriting expert in which it was mentioned that figure ‘3’ was added subsequently. The complainant claimed that his annual income is Rs.2,50,000/- and he is an income tax payee. He admitted that he had filed the Income Tax Return of Rs.1,70,000/-There was no documentary evidence to prove that the complainant had the financial capacity to lend Rs.3,10,000/-. It was also not probable that a person would lend money by borrowing it from his friends; therefore, the complaint was dismissed. 8. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court erred in dismissing the complaint. The accused has raised a vague defence. He had failed to show the steps taken by him for the return of the cheque. Learned Trial Court overlooked the presumption contained in Section 139 of the NI Act. Learned Trial Court accorded too much weight to the report of the expert. The report was not proved. The accused has raised a vague defence. He had failed to show the steps taken by him for the return of the cheque. Learned Trial Court overlooked the presumption contained in Section 139 of the NI Act. Learned Trial Court accorded too much weight to the report of the expert. The report was not proved. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 9. The complainant also filed an application under Section 311 of Cr.P.C. for recalling himself for further examination. It was asserted that the learned Trial Court held that the income of the applicant ranged between Rs.1,70,000/- to Rs.2,50,000/ - and he could not have advanced a sum of Rs.3,10,000/ - to the accused. The complaint was dismissed based on this reasoning. The complainant wants to prove the Income Tax Return filed by him and examine himself to prove these returns. Hence, it was prayed that the present application be allowed and the complainant be permitted to be recalled. 10. The application is opposed by filing a reply taking preliminary objections regarding lack of maintainability, the complainant being estopped from filing the application by his act, conduct and acquiescence, and the application having been filed to fill up the lacuna. The contents of the application were denied on merits. It was asserted that the complainant cleverly placed on record the copy of the Income Tax Return in which an amount of Rs.3,10,000/- was stated to have been advanced by him to the accused. This is contrary to the statement in the cross-examination that the complainant had filed the Income Tax Return of Rs.1,70,000/- during the previous year. The complaint was rightly dismissed on merits. The application has been filed to fill up the lacuna. The report of the Handwriting Expert clearly shows that there was tampering with the cheque. There was a violation of Section 269 (SS) of the Income Tax Return; therefore, it was prayed that the application be dismissed. 11. I have heard Mr. Peeyush Verma, learned counsel for the appellant and Mr. Ravinder Singh Jaswal, learned counsel for the respondents. 12. Mr. Peeyush Verma, learned counsel for the appellant/complainant submitted that the learned Trial Court erred in relying upon the report of the Handwriting Expert. 11. I have heard Mr. Peeyush Verma, learned counsel for the appellant and Mr. Ravinder Singh Jaswal, learned counsel for the respondents. 12. Mr. Peeyush Verma, learned counsel for the appellant/complainant submitted that the learned Trial Court erred in relying upon the report of the Handwriting Expert. The Expert was not examined and no opportunity was given to the accused to rebut the report. The report of the Handwriting Expert is not admissible under Section 294 of Cr.P.C. The learned Trial Court could not have relied upon the report without proper proof as per the law. Learned Trial Court erred in holding that the complainant did not have the financial capacity to advance the sum of Rs.3,10,000/-. The complainant wants to examine himself to prove the Income Tax Return filed by him and the advancement of the loan. Therefore, he prayed that the application be allowed and the complainant be permitted to be recalled. 13. Mr Ravinder Singh Jaswal, learned counsel for the respondent/accused supported the judgment passed by the learned Trial Court. He submitted that the application has been filed to fill up the lacuna left by the complainant and the witness cannot be recalled to fill up the lacuna left by him; hence, he prayed that the present appeal and the application be dismissed. 14. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 15. The present appeal has been filed against a judgment of acquittal. The Hon’ble Supreme Court laid down the parameters of deciding an appeal against acquittal in Jafarudheen v. State of Kerala, (2022) 8 SCC 440 , as under:- “Scope of Appeal filed against the Acquittal: 25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters." 16. This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429, wherein it was held:- “15. One of the main contentions raised by the learned counsel appearing for the appellant is to the effect that the High Court ought not to have interdicted with the judgment of the acquittal passed by the Trial Court and only in the event of the judgment of the Trial court was riddled with perversity and the view taken by the Trial Court was not a possible view, same could have been reversed by relying upon the judgment of this Court in case of Murugesan V. State through the Inspector of police (2012) 10 SCC 383 whereunder it came to be held as follows: “33. The expressions “erroneous”, “wrong” and “possible” are defined in the Oxford English Dictionary in the following terms: “erroneous.— wrong; incorrect. wrong.—(1) not correct or true, mistaken. (2) unjust, dishonest, or immoral. possible.—(1) capable of existing, happening, or being achieved. (2) that may exist or happen, but that is not certain or probable.” 34. It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.” 16. It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh (2009) 10 SCC 636 : AIR 2010 SC 589 it has been held by this Court as under: “14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word “perverse” in terms as understood in law has been defined to mean “against the weight of evidence”. We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so. 17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. 17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on the exercise of the power to review at large the evidence upon which the order of acquittal was founded and to conclude that upon that evidence the order of acquittal should be reversed. 18. In the case of Sheo Swarup v. King Emperor AIR 1934 PC 227 , it has been held by the Privy Council as under: But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as: 1) The views/opinion of the trial judge as to the credibility of the witnesses; 2) The presumption of innocence in favour of the accused; 3) The right of the accused to the benefit of any doubt; and 4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. 19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka (2007) 4 SCC 415 to the following effect: “42. From the above decisions, in our considered view, the following general principles regarding the powers of the Appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An Appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an Appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an Appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An Appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate court should not disturb the finding of acquittal recorded by the trial court.” 17. The present appeal has to be adjudicated in the light of the judgments of the Hon'ble Supreme Court. 18. Learned Trial Court heavily relied upon the report of the Handwriting Expert issued by Scientist ‘B’, CFSL, Government of India. It was submitted that this document was not per se admissible and it was essential to examine the Expert, who had issued the report. This submission has to be accepted as correct. It was laid down by this Court in State of Himachal Pradesh versus Anoop Kumar 2008 (1) ShimLC 71 that the opinion of a Handwriting Expert is required to be proved in accordance with the law. It was observed:- “The allegations against Anoop Kumar are that he forged G.R. Ext.PW-18/A. In support of forgery allegedly committed by Anoop Kumar, the prosecution has relied on handwriting expert report Ext. PW -19/A. This report was produced by P.W.-19 Garib Dass, a Retired Inspector. It was observed:- “The allegations against Anoop Kumar are that he forged G.R. Ext.PW-18/A. In support of forgery allegedly committed by Anoop Kumar, the prosecution has relied on handwriting expert report Ext. PW -19/A. This report was produced by P.W.-19 Garib Dass, a Retired Inspector. The prosecution did not examine handwriting experts to prove Ext.PW-19/A. Section 293, Cr.P.C. permits the use of some reports in evidence but the report of a handwriting expert is not included in Section 293, Cr.P.C. In other words, handwriting expert opinion is required to be proved in accordance with the law. In the present case, the handwriting expert report has not been proved as per law, therefore, handwriting expert report Ext.P.W.-19/A cannot be read in evidence. In the absence of a handwriting expert report, there is nothing on record to show that Anoop Kumar has forged Ext.P.W.-18/A. The learned Sessions Judge has rightly acquitted Anoop Kumar under Section 468, I.P.C.” 19. Therefore, the learned Trial Court erred in relying upon the report without the examination of the Expert. 20. The complainant-Amar Dev (CW1) stated that he knew the accused no. 2 for 8-9 years. The accused came to him in March 2009 and stated that he was doing the construction work and required Rs.3,10,000/-. He took the money from his relatives and advanced Rs.3,10,000/-. The accused assured to return the amount in October and issued a post-dated cheque (Ext. CW1/A). He presented the cheque but it was dishonoured. He stated in his cross-examination that he knew the accused because the accused used to get his Income Tax Returns filled out from him (complainant). The complainant had filed the return of the accused amounting to Rs.1,50,000/- . The income of the complainant was Rs.2,50,000/-. The complainant had submitted a return of Rs.1,70,000/- during the previous year but he could mention the exact amount after verifying it from the return. He had only Rs.1,00,000/- with him and he had taken Rs.1,00,000/- from Amar Chand, Rs. 50,000/- from Mansa Ram and Rs. 60,000/- from his father. The accused had not demanded any money from him before that date. He had returned the amount to the friends from whom it was borrowed. He denied that the accused had issued a cheque of Rs.10,000/- and the rest of the cheque was blank. He denied that he had written the figure ‘3’ himself. 60,000/- from his father. The accused had not demanded any money from him before that date. He had returned the amount to the friends from whom it was borrowed. He denied that the accused had issued a cheque of Rs.10,000/- and the rest of the cheque was blank. He denied that he had written the figure ‘3’ himself. He denied that the accused had written Rs.10,000/- and when the accused demanded the cheque, he told him that the cheque was misplaced. 21. The complainant filed an application to prove the Income Tax Returns submitted by him. The return for the year 2009-2010 was submitted on 16.03.2010 as per the endorsement made on the acknowledgement. He had filed the complaint on 11.03.2010, hence, the Income Tax Return came into existence after filing of the complaint during its pendency. 22. Further, these documents were available with the complainant during the Trial. He has not shown any reason as to why he had not produced these documents before the learned Trial Court. The application has been filed under Section 311 of Cr.P.C. however, the application is in the nature of additional evidence to prove the additional record mainly the Income Tax Return and will properly fall within the definition of Section 391 of Cr.P.C. 23. It was laid down by the Hon'ble Supreme Court in Ashok Tshering Bhutia Versus State of Sikkim (2011) 4 SCC 402 that the power to receive additional evidence must be exercised sparingly in those cases where the Court is satisfied that additional evidence would serve the interest of justice. It was observed: “28. Additional evidence at the appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptionally suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. 29. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. 29. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on the part of the prosecution before the court or for the vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. (Vide Rajeswar Prasad Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887 ; Ratilal Bhanji Mithani v. The State of Maharashtra & Ors., AIR 1971 SC 1630 ; Rambhau & Anr. v. State of Maharashtra, AIR 2001 SC 2120 ; Anil Sharma & Ors. v. State of Jharkhand, AIR 2004 SC 2294 ; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors., (2004) 4 SCC 158 ; and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352 ). 30. This Court in State of Gujarat v. Mohanlal Jitamalji Porwal & Anr., AIR 1987 SC 1321 , dealing with the issue held as under: "...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even - handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest....." 31. In Rambhau (supra), a larger Bench of this Court held as under : "Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of the exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41, Rule 27 of the C.P. Code." 32. In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in the public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution's case.” 24. Similarly, it was laid down in Rajinder Singh Versus State of Haryana (2016) 14 SCC 671 that where the evidence could have been produced before the learned Trial Court, the application for additional evidence cannot be allowed by the learned Appellate Court. 25. Similarly, it was laid down in Rajinder Singh Versus State of Haryana (2016) 14 SCC 671 that where the evidence could have been produced before the learned Trial Court, the application for additional evidence cannot be allowed by the learned Appellate Court. 25. Since no plausible reason has been assigned for not producing the additional evidence before the learned Trial court; therefore, it is impermissible to lead the additional evidence in the appeal. Consequently, the present application fails and the same is dismissed. 26. Learned Trial Court held that there is a presumption under Section 139 of N.I. Act that a cheque was issued in discharge of the legal liability. There is no dispute with this proposition of law. It was laid down by the Hon’ble Supreme Court in Rajesh Jain versus Ajay Singh, 2023 STPL(Web) 322 SC = 2023 INSC 888 , that the Court has to presume the existence of legally enforceable debt or liability. It was observed: “34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and is hence, not repeated-Reference to one can be taken as a reference to another] 35. Section 139 of the NI Act, which takes the form of a ‘shall presume’ clause is illustrative of a presumption of law. Because Section 139 requires that the Court ‘shall presume’ the fact stated therein, 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. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase ‘unless the contrary is proved’. 36. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase ‘unless the contrary is proved’. 36. The Court will necessarily presume that the cheque had been issued towards the discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that the cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [ (1999) 3 SCC 35 ] 37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar[ (2019) 4 SCC 197 ]]. Therefore, the mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption. 38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further. 39. John Henry Wigmore [Rules of Evidence- The Hidden Origin of Modern Law] on Evidence states as follows: “The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule.” 40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of ‘preponderance of probabilities’, similar to a defendant in a civil proceeding. [Rangappa vs. Mohan ( AIR 2010 SC 1898 )] 41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words ‘until the contrary is proved’ occurring in Section 139 do not mean that the accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa ( AIR 2019 SC 1983 ) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513 ] 42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty-one to forty-nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was ‘no debt/liability’. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513 ] 43. All of them can raise a preponderance of probabilities justifying a finding that there was ‘no debt/liability’. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513 ] 43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact. 44. The accused may adduce direct evidence to prove that the instrument was not issued in the discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance, those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case-(supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well. 45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities, there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in the dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983 ; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441 ]” 27. Thus, the Court has to presume the existence of legally enforceable debt or liability and the burden will shift to the accused to lead a probable defence to rebut this presumption. This principle was laid down by the Hon’ble Supreme Court in Tedhi Singh Versus Narayan Dass Mahant (2022) 6 SCC 735 as under:- “7. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the N.I. Act provides that Court shall presume 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. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of ‘probable defence' has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa (supra), this Court notes that Section 139 of the N.I. Act is an example of reverse onus [see (2010) 11 SCC 441 ). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist.” 28. It was further held that the complainant is not supposed to lead any evidence to establish his financial capacity. However, the accused has a right to demonstrate that the complainant did not have the financial capacity. The Court has to see the evidence whether the defence is probable or not. It was observed:- “9. It was further held that the complainant is not supposed to lead any evidence to establish his financial capacity. However, the accused has a right to demonstrate that the complainant did not have the financial capacity. The Court has to see the evidence whether the defence is probable or not. It was observed:- “9. The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act, the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not civil suit. At the time, when the complainant gives his evidence unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.” 29. This question was also considered by the Hon’ble Supreme Court in Basalingappa Versus Mudibasappa (2019) 5 SCC 418 and it was held that where the financial capacity to pay Rs. 6,00,000/- was questioned that there was no satisfactory reply the accused had raised a probable defence. It was observed:- “26. This question was also considered by the Hon’ble Supreme Court in Basalingappa Versus Mudibasappa (2019) 5 SCC 418 and it was held that where the financial capacity to pay Rs. 6,00,000/- was questioned that there was no satisfactory reply the accused had raised a probable defence. It was observed:- “26. Applying the preposition of law as noted above, in facts of the present case, it is clear that the signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of the PW1, when the specific question was put that a cheque was issued in relation to a loan of Rs. 25,000/-taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received a monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs. 4,50,000/-to Balana Gouda towards sale consideration. Payment of Rs. 4,50,000/-being admitted in the year 2010 and further payment of loan of Rs. 50,000/-with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was a burden on the complainant to prove his financial capacity. In the years 2010-2011, as per the own case of the complainant, he made a payment of Rs. 18 lakhs. During his cross-examination, when the financial capacity to pay Rs. 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts. 27. There was another evidence on the record, i.e., a copy of the plaint in O.S. No. 148 of 2011 filed by the complainant for recovery of a loan of Rs. 7 lakhs given to one Balana Gouda in December 2009. Thus, there was evidence on record to indicate that in December 2009, he gave Rs. 27. There was another evidence on the record, i.e., a copy of the plaint in O.S. No. 148 of 2011 filed by the complainant for recovery of a loan of Rs. 7 lakhs given to one Balana Gouda in December 2009. Thus, there was evidence on record to indicate that in December 2009, he gave Rs. 7 lakhs in a sale agreement, in 2010, he made a payment of 4,50,000/-towards sale consideration and further, he gave a loan of Rs. 50,000/-for which complaint was filed in 2012 and further loan of Rs. 6 lakhs in November 2011. Thus, during the period from 2009 to November 2011, an amount of Rs. 18 lakhs was given by the complainant to different persons including the accused, which put a heavy burden to prove the financial capacity when it was questioned on behalf of the accused, the accused being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs. 8 lakhs only. The High Court observed that though the complainant is a retired employee, the accused did not even suggest that pension is the only means for the survival of the complainant. The following observations were made in Paragraph 16 of the judgment of the High Court: "17. Though the complainant is a retired employee, the accused did not even suggest that a pension is the only means for the survival of the complainant. Under these circumstances, the Trial Court's finding that the complainant failed to discharge his initial burden of proof of lending capacity is perverse." 28. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in the examination-in-chief, the complainant has not mentioned as to on which date, the loan of Rs. 6 lakhs was given to the accused. It was during cross-examination, he gave the date as November 2011. Under Section 118 (b), a presumption shall be made as to the date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post-dated cheque was given to him in November 2011 bearing dated 27.02.2012. Under Section 118 (b), a presumption shall be made as to the date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post-dated cheque was given to him in November 2011 bearing dated 27.02.2012. Giving of a cheque on 27.02.2012, which was deposited on 01.03.2012 is not compatible with the case of the complainant when we read the complaint submitted by the complainant, especially Para 1 of the complaint, which is extracted as below: "1. The accused is a very good friend of the complainant. The accused requested the Complainant a hand loan to meet out the urgent and family necessary sum of 6,00,000/-(Rupees Six Lakh) and on account of long-standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lend hand loan to meet out the financial difficulties of the accused and accordingly the Complainant lend hand loan Rs. 6,00,000/-(Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honoured. But to the surprise of the Complainant on presentation of the same for collection through his Bank, the Cheque was returned by the Bank with an endorsement "Funds Insufficient" on 01-03-2012." 29. Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding the date on which the loan was given on one side and what was said in cross-examination in the other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply to the notice denying the execution of the cheque or legal liability. Even before the trial court, the appellant-accused has not denied his signature on the cheque. 30. We are of the view that when evidence was led before the Court to indicate that apart from a loan of Rs. 6 lakhs given to the accused, within 02 years, an amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. The court cannot insist on a person to lead negative evidence. 6 lakhs given to the accused, within 02 years, an amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. The court cannot insist on a person to lead negative evidence. The observation of the High Court that the trial court's finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see how the trial court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence.” 30. In the present case, the complainant admitted in his cross-examination that his yearly income is Rs. 2,50,000/-. He also admitted that he had submitted the Income Tax Return of Rs. 1,70,000/-. Therefore, it is apparent from the admission made by the complainant in his cross-examination, that he did not have the financial capacity to pay Rs.3,10,000/-. 31. The complainant claimed that he had Rs.1,00,000/- in cash with him and he borrowed the rest of the amount from Amar Chand, Mansa Ram and his father. He admitted that he had known the accused for 8-9 years. He admitted that the accused used to get his return filed from him and he had filed the return of the accused for Rs.1,50,000/-. Thus, the complainant knew that the accused had an income of Rs.1,50,000/- and the accused did not have the financial capacity to return Rs.3,10,000/-to him. Still, he took a risk and borrowed the money from his friends and his father to advance it to the accused. Learned Trial had rightly held that the conduct of the complainant was not normal. It is difficult to believe that a person would borrow money to lend it to a stranger when he knew that the income of the stranger was less than the money being advanced to him. Therefore, the learned Trial Court was justified in holding that the examination of Amar Chand Thakur, Mansa Ram and the complainant's father was essential to prove that they had advanced money to the complainant. 32. The complainant did not examine these persons. Therefore, the learned Trial Court was justified in holding that the examination of Amar Chand Thakur, Mansa Ram and the complainant's father was essential to prove that they had advanced money to the complainant. 32. The complainant did not examine these persons. Thus, the learned Trial Court had rightly doubted the financial capacity of the complainant and had rightly held that the presumption contained in Section 139 of the Negotiable Instrument Act was rebutted. This was a reasonable view taken by the learned Trial Court. This Court will not interfere with the view of the learned Trial Court merely because it would have taken a different view had it been trying the complaint on the original side as per the judgments of the Hon’ble Supreme Court noticed above. 33. Therefore, the submission that the learned Trial Court had wrongly held that the presumption under Section 139 of the NI Act was rebutted is not acceptable. 34. No other point was urged. 35. Therefore, the judgment passed by the learned Trial Court was a reasonable one and no interference is required with the same. 36. In view of the above, the present appeal fails and the same is dismissed.