Money Lending – The appellant’s wife subscribed to chit funds (1992 and 1995) with the respondent for which two signed blank cheques were submitted as security – After maturity of the chit funds, appellant and his wife sought release of the subscription amount – However, respondent presented those cheques for encashment without any intimation to appellant – Said cheques were dishonoured as the appellant had closed the account – Respondent filed two complaint cases u/s 138 of NI Act – Both cases were dismissed by the trial Court – Thereafter, respondent filed suits for recovery of money on the basis of the Promissory Notes –Both the suits were dismissed – Appeals against the judgments in the criminal matters were allowed by the High Court and order of conviction and sentence was passed – Also, the suits were decreed by the High Court – On appeal, held: Considering the criminal appeals first, the trial court found that Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loan of Rs. 3 lakhs –The standard of proof for rebutting the presumption is that of preponderance of probabilities – Applying this principle, the trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances – In the instant case, the defence raised by the appellant satisfies the standard of ‘preponderance of probability’ – High Court was not justified in reversing the order of acquittal of the appellant – Insofar as civil appeals are concerned, High Court on basis of the evidence on record, relying on the preponderance of probability, came to the conclusion that the plaintiff had the financial ability to lend sum of Rs.3 lakhs – As the appellant’s wife was not examined as witness, the High Court found that the best available evidence was withheld by the defendants/appellants and as such principle of adverse inference applicable – Therefore, no reason to interfere with the judgments and the orders passed by the High Court in civil appeals.
Disposing of the appeals, the Court
HELD: 1. Consider the criminal appeals first, after analyzing all these pieces of evidence, the Trial Court found that the Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loan of Rs.3 lakh. Therefore, the case of the complainant that he had given a loan to the accused from his agricultural income was found to be unbelievable by the Trial Court. The Trial Court found that it was highly doubtful as to whether the complainant had lent an amount of Rs.3 lakh to the accused. The Trial Court also found that thecomplaint had failed to produce the promissory note alleged to have been executed by the accused on 25th October 1998. After taking into consideration the defence w itnesses and the attending circumstances, the learned Trial Court found that the defence was a possible defence and as such, the accused was entitled to benefit of doubt. The standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the Trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances. In the present case, this Court is of the considered opinion that the defence raised by the appellant satisfies the standard of “preponderance of probability”.The High Court was not justified in reversing the order of acquittal of the appellant. [Paras 20, 25 and 27][819-EH; 820-G-H; 821-C]
2. A distinguishing fact between the criminal proceedings and the civil proceedings in the present case is that, while in the criminal proceedings the complainant had failed to produce the promissory notes, in the civil proceedings, the complainant had proved the promissory notes. The High Court found that the Civil Appeals were required to be decided on the basis of the preponderance of probabilities. The High Court found that the complainant had established that he was working as a LIC Agent, that his father was owning extensive agricultural properties and that he was deriving agricultural income. The High Court, on the basis of the evidence placed on record, relying on the preponderance of probability, came to a conclusion that the plaintiff had the financial ability to lend the sum of Rs.3 lakh as on 20th October 1998. The High Court also found that the appellant’s wife was not examined as a witness in the said case so as to probabilize the defence plea. The High Court found that the best available evidence was withheld by the defendants/appellants herein and as such, the principle of adverse inference was also applicable. [Para 29][821-E-G]
3. The High Court rightly observed that the adjudication in civil matters is based on preponderance of probabilities whereas adjudication in criminal cases is based on the principle that the accused is presumed to be innocent and the guilt of the accused should be proved to the hilt and the proof should be beyond all reasonable doubt. [Para 30][822-A-B]
4. In the result, this Court pass the following order:
(i) Criminal Appeal Nos. 1978 of 2013 and 1990 of 2013 are allowed and the common judgment of conviction dated 28th October 2008 and order of sentence dated 30th October 2008 respectively are quashed and set aside. The judgments and orders dated 10th July 2011 passed by the Trial Court is confirmed.
(ii) Civil Appeal Nos. 10500 of 2013 and 10501 of 2013 are dismissed. However, the decrees of the High Court are modified, thereby restricting them to the amount already deposited by the appellants in this Court in the civil and criminal proceedings, along with interest accrued thereon. [Para 32][822-E-G] RohitbhaiJivanlal Patel v. State of Gujarat and Anr. (2019) 18 SCC 106 - held inapplicable.
Basalingappa v. Mudibasappa (2019) 5 SCC 418 : [2019] 6 SCR 555; Bir Singh v. Mukesh Kumar (2019)
4 SCC 197 : [2019] 2 SCR 24 ; Kalamani Tex and Anr v. P. Balasubramanian (2021) 5 SCC 283 - referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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