RAVIKUMAR v. K.J. PUTTARAJU

by setting aside the judgment of the trial Court.

The complainant aggrieved by the said judgment of the first appellate Court, has preferred this appeal.

The records of this appeal further reveal, that after filing of the appeal either the counsel for the appellant or appellant did not appear before the Court, therefore, to keep the interest of the appellant, to prosecute this appeal on behalf of the appellant Smt. Archana Murthy, Advocate is appointed as amicus curiae to assist the Court to decide this appeal. - 9 - NC: 2025:KHC:30647 CRL.A No. 729 of 2012 HC-KAR

The learned amicus curiae for the appellant argued that, the learned Sessions Judge erred in law in disbelieving the evidence of the complainant and in interfering with the well reasoned judgment of the trial Court. It was contended that, once signature on the cheque is admitted, the statutory presumption arises in favour of the complainant and that the accused had not produced sufficient evidence presumption. It was also argued the defence taken by the accused is mere afterthought and that the appellate Court has adopted an approach which is contrary to the settled principle of law held by the Apex Court.

Per contra, learned counsel for the respondent- accused supported the finding of the first appellate Court and submits that, the complainant had no financial capacity to advance the loan as alleged in the complaint and there was no loan transaction entered into both himself and the complainant. The cheque so issued to the hardware businessman is misused by the complainant. - 10 - NC: 2025:KHC:30647 CRL.A No. 729 of 2012 HC-KAR Thus, according to him, the acquittal order passed by the appellate Court is legally justifiable and cannot be interfered with.

I have carefully considered the submissions made and meticulously gone through entire material on record.

It is no doubt true that, under Section 139 of the NI Act, once execution of the cheque and the signature thereon is admitted, the presumption arises that, the cheque was issued for the discharge in whole or in part, of any debt or other liability. However, it is equally well settled the presumption is rebuttable and that the burden on the accused is not to prove his defence beyond reasonable doubt but, to raise a probable defence which creates in the mind of the Court about the existence of legally enforceable debt. The standard of proof required to rebut the presumption is that, of preponderance of probabilities. - 11 - NC: 2025:KHC:30647 CRL.A No. 729 of 2012 HC-KAR

In the instant case, the complainant has failed to establish even the basic elements of transaction, no receipt agreement or contemporaneous record has been produced to evidence the loan of Rs.6 lakhs. The complainant did not prove his financial capacity to lend such an amount nor did he examine any witness who would speak to the transaction. In his own evidence, he has stated that when he lent loan to the accused, except himself nobody was there and has not received any cheque from the accused.

On scrupulous reading of the evidence spoken to by PW. 1, he states that, for the purpose of security he has not taken any pronote or cheque and he has paid Rs.6 lakhs to the accused without any interest. The learned first appellate Court taking this evidence of PW.1 held that, in view of evidence of complainant, the defence of appellant appears to be probable as he was not acquainted with the complainant, question of borrowing money never arose and that his friend N.K.Shashidhar to whom he gave - 12 - NC: 2025:KHC:30647 CRL.A No. 729 of 2012 HC-KAR cheque for security purpose for repayment towards purchase of cement and hardware from his shop, the complainant might have got the same concocted. The entire claim rests on the issuance of a cheque and the legal notice without any supporting proof of the underlying debt. When issuance of chque may raise a presumption under the law, such a presumption cannot operate in a vacuum or substitute the absence of foundational facts.

The appellate Court, in my opinion has correctly evaluated the evidence and rightly held that complainant failed to establish the existence of legally enforceable liability. The defence, though not fully proved is sufficient to cause a reasonable doubt the complainant's version. In criminal jurisprudence when two views are possible, one favourable to the accused must be adopted. The presumption under Section 139 of the NI Act cannot be elevated to the rule of compulsion to convict in every case - 13 - NC: 2025:KHC:30647 CRL.A No. 729 of 2012 HC-KAR where the cheque is admitted irrespective of the surrounding circumstances.