Basalingappa vs Mudibasappa

(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

(v) It is not necessary for the accused to come in the witness box to support his defence. [Para 23][573-B-F]

2. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that 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 cheque was issued in relation to 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 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 one ‘BG’ 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 burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when 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. [Para 24][573-F-H; 574-A-C]

3. This Court is of the view that when evidence was led before the Court to indicate that apart from loan of Rs.6 lakhs given to the accused, within 02 years, 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. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial court’s finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. This Court failed to see that 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. [Para 28][575-G-H; 576-A-B]

4. High Court without discarding the evidence, which was led by defence could not have held that finding of trial court regarding financial capacity of the complainant is perverse. Thus, this court is satisfied that accused has raised a probable defence and the findings of the trial court that complainant failed to prove his financial capacity are based on evidence led by the defence. The observations of the High Court that findings of the trial court are perverse are unsustainable. Thus, the judgment of the High Court is unsustainable. [Para 29][576-E-F]

Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808:[1974] 1 SCR 722; Bharat Barrel & Drum

Manufacturing Company v. Amin Chand Pyarelal (1999)

3 SCC 35:[1999] 1 SCR 704; M.S. Narayana Menon Alias Mani v. State of Kerala and Another (2006) 6 SCC 39:[2006] 3 Suppl. SCR 124; Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008) 4 SCC 54:[2008] 1 SCR 605; Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513:[2008] 17 SCR 572; Rangappa v. Sri Mohan (2010) 11 SCC 441:[2010] 6 SCR 507 – relied on. Kishan Rao v. Shankargouda (2018) 8 SCC 165:[2018]

5 SCR 69; Gamini Bala Koteswara Rao and others v. State of Andhra Pradesh through Secretary, (2009) 10 SCC 636:[2009] 14 SCR 1 – referred to.