JUDGMENT [ENTITY], J.
1. This criminal appeal is directed against the judgment dated 14th November, 2002 passed in [CASE NUMBER] on the file of the Judicial Magistrate of First Class, Tandur, Ranga Reddy District, whereby and where under the learned Magistrate found accused-[ENTITY] not guilty for the offence under [SECTION] of the [ACT], (for short, 'the [ACT]') and acquitted him accordingly.
2. Appellant herein is the complainant and first respondent herein is the accused in [CASE NUMBER] on the file of the Judicial Magistrate of First Class, Tandur, Ranga Reddy District. They are here-in-after referred to as the complainant and the accused.
3. The back ground facts, in nut-shell, leading to filing of this criminal appeal by the complainant are : - The complainant filed a complaint under [SECTION] [ACT] against the accused for the offence under [SECTION] of the [ACT] alleging inter alia that the accused obtained hand loan of Rs. 40,000/- from him assuring to repay the same within a short period. The accused issued Ex. P1 cheque bearing No. 8876209, dated 19.01.2000, for Rs. 40,000/- to discharge the said hand loan. The complainant presented Ex. P1 cheque in Dena Bank, Tandur, for encashment. On 21.01.2000 the said cheque came to be dishonoured for want of sufficient funds in the account of the accused. Thereupon, the complainant issued the statutory notice calling upon the accused to make good the amount covered under the cheque in question. The accused received the notice on 24.01.2000, but he neither paid the amount nor sent any reply to the legal notice. Hence, the accused rendered himself liable for the offence under [SECTION] of the [ACT].
4. The learned Magistrate, on recording the sworn statement of the complainant, took the complaint on file as [CASE NUMBER] against the accused for the offence under [SECTION] of the [ACT] and issued process.
5. On appearance of the accused and on furnishing copies of the documents to him, the learned Magistrate examined the accused under [SECTION] [ACT] putting the substance of the accusations levelled against him. The accused pleaded not guilty and claimed to be tried.
6. To substantiate the accusations levelled against the accused, the complainant examined 3 witnesses as PWs. 1 to 3 and marked 7 documents as Exs. P1 to P7. The plea of the accused was that he did not borrow Rs. 40,000/- from the complainant as hand loan. His further plea was that the complainant runs a finance company and in the course of the finance business the complainant obtained Ex. P1 blank cheque from him and subsequently the complainant himself filled-up the cheque before presenting the same for encashment.
7. The learned Magistrate, on considering the evidence brought on record and on hearing the complainant and the accused, found the accused not guilty for the offence under [SECTION] of the [ACT] and acquitted him accordingly, by judgment dated 14.11.2002. Hence, this criminal appeal by the complainant.
8. Heard learned Counsel appearing for the appellant/complainant and learned Counsel appearing for the first respondent/accused.
9. Learned Counsel appearing for the appellant/complainant submits that the trial Court committed error in ignoring the presumptions available under [SECTION] and [SECTION] of the [ACT] in favour of the appellant/complainant being holder of the negotiable instrument i.e. Ex. P1 cheque. A further submission has been made that the first respondent/accused did not adduce any evidence to rebut the presumptions accrued in favour of the appellant-complainant in respect of the cheque in question and therefore, the acquittal of the first respondent/accused for the offence under [SECTION] of the [ACT] is not legal and proper and the same is liable to be set aside and instead the first respondent/accused is to be convicted for the offence under [SECTION] of the [ACT]. In support of his submissions, reliance has been placed on the following decisions:
1) [PRECEDENT]. .
2) [PRECEDENT] and [PRECEDENT]. .
10. In [PRECEDENT]. (1 supra), the Supreme Court held that the accused had to prove in the trial, by leading cogent evidence, that there was no debt or liability when the cheque in question came to be issued. Para. 6 of the judgment needs to be noted and it is thus:
In our view the impugned judgment cannot be sustained at all. The judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonoured cheque is on the complainant. It appears that the learned Judge had lost sight of [SECTION] and [SECTION] of the [ACT]. Under [SECTION], unless the contrary was proved, it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under [SECTION] the court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus, in complaints under [SECTION], the court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of [PRECEDENT] has also taken an identical view.
11. In [PRECEDENT], the Supreme Court held that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they had to discharge in the trial.
12. Learned Counsel appearing for the first respondent/accused submits that the first respondent/accused was able to establish in the cross-examination of PW. 1, who is the complainant, that he did not borrow any money from him as hand loan and whatever transactions he had with the complainant were in respect of the finance business. A further submission has been made that as the appellant/complainant did not prove the basic facts with regard to lending Rs. 40,000/-as hand loan to the first respondent/accused, the trial Court is justified in not applying the presumptions available under [SECTION] and [SECTION] of the [ACT] in favour of the appellant/complainant. He would further contend that even if the presumptions available under [SECTION] and [SECTION] of the [ACT] are pressed into service in favour of the appellant/complainant, the first respondent/accused is able to rebut the said presumptions through the cross-examination of the appellant/complainant, who has been examined as PW. 1.
13. The specific case of the appellant/complainant is that the first respondent/accused borrowed an amount of Rs. 40,000/-from him as hand loan and towards discharge of the said hand loan, Ex. P1 cheque came to be issued in his favour. It is the plea of the first respondent/accused that he never borrowed Rs. 40,000/- as hand loan from the appellant/complainant and that the appellant/complainant obtained certain blank cheques from him in respect of finance business.
14. The appellant/complainant while being examined as PW. 1 specifically admits in the cross-examination that he has no proof of lending Rs. 40,000/- to the first respondent/accused as hand loan. Instead, he admits of his being a Managing Director of the finance company, wherein, the first respondent/accused became a member and borrowed certain amount. Indisputably, the transactions between the finance company and the first respondent/accused are in no way connected to the alleged hand loan said to have been availed by the first respondent/accused. It is crystal clear from the evidence of the appellant/complainant that he has not placed on record any material to speak of his lending Rs. 40,000/- to the first respondent/accused as hand loan. He did not even say the date, month or year of the said hand loan. It is admitted by PW. 1, who is the appellant/complainant, that the first respondent/accused obtained a loan of Rs. 1,00,000/- from the finance company and issued 19 cheques in discharge of the installments. The appellant/complainant as Managing Director of the finance company filed a suit for realization of the amount due by the first respondent/accused in respect of the transactions with the finance company. If the evidence of the appellant/complainant is scrutinized with this back ground, it is highly unbelievable that the appellant/complainant would lend Rs. 40,000/- as hand loan to the first respondent/accused. The basic fact of lending Rs. 40,000/- as hand loan to the first respondent/accused has not been proved by the appellant/complainant. The decisions, on which the learned Counsel appearing for the appellant/complainant relied, came to be referred by the Supreme Court in [PRECEDENT], wherein it has been held that whether in the given facts and circumstances of a case, the initial burden has been discharged by an accused would be a question of fact. It was a matter relating to appreciation of evidence. Once the accused discharges the initial burden placed on him, the burden of proof would revert back to the complainant. For rebutting the presumptions under [SECTION] and [SECTION] of the [ACT], what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon and the standard of proof evidently is preponderance of probabilities.
15. In the instant case, the first respondent/accused is able to probabilize his defence through the cross-examination of PW. 1. The very fact that the appellant/complainant has not placed on record any material to speak of the lending of Rs. 40,000/- as hand loan to the first respondent/accused is sufficient to infer that the first respondent/accused is able to rebut the presumptions available in favour of the appellant/complainant under [SECTION] and [SECTION] of the [ACT]. The trial Court considered the evidence brought on record in right perspective and found the first respondent/accused not guilty for the offence under [SECTION] of the [ACT]. I do not see any flaw in the judgment impugned in the appeal.
16. Accordingly, this criminal appeal fails and is hereby dismissed.