1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 480 of 2001. Date of Decision: 1-9-2008. _______________________________________________________ Deepak Sood. Appellant. Versus Pardeep Kumar. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. For the appellant : Sh.Ajay Kumar, Advocate. For respondent : Shri G.D. Verma, Senior Advocate with Shri Romesh Verma, Advocate. Surinder Singh, J(oral) . The complainant has filed the instant appeal against the acquittal of the respondent under Section 138 of the Negotiable Instruments Act, 1881, in short “the Act”. Precisely, the case of the complainant is that he was engaged in side business of sale and purchase of shares of the Companies, under the head and style of “M/s Hi Tech Investments” and the respondent-accused was his customer. It is alleged that on 3.8.1993, the respondent purchased 100 shares of Tisco Company at the rate of 180 per share and his commission was 7.50 per share. As such, the total value of the purchase shares by the respondent was 18750/-. The respondent issued a cheque Exhibit P1 to the tune of rupees 14, 750/- drawn on State Bank of India, Shimla Branch and agreed to pay the balance in cash. When the cheque was presented for encashment into the said Bank in the first week of January, 1994 through his Bankers Oriental Bank of Commerce, Shimla, it was returned to the Whether reporters of the Local papers are allowed to see the judgment? yes 2 complainant with the endorsement “insufficient funds”. When this fact was brought to the notice of the respondent, he told the complainant to present it again and also assured to pay the balance amount of rupees 4000/- at the earliest but during the second presentation on 20.1.1994, the cheque was again returned to the complainant with the same endorsement on the very next day. Hence, the complainant sent notice which was received by the respondent. The respondent vide his reply dated 14.2.1994, admitted the aforesaid facts and built up a false story asking him to release his 200 shares. Hence the complaint was filed before the learned trial Court under the aforesaid Section to proceed against the respondent. After the preliminary evidence, the respondent was summoned. Notice of accusation was put to him. He pleaded not guilty and submitted that he has a defense to make. The complainant produced his witnesses to prove his case. The respondent was examined under Section 313 of the Code of Criminal Procedure. He denied any debt liability as alleged. Rather, he raised the defense that in fact, he issued the cheque on 4.8.1993 for rupees 14,750/- on the condition that it would be encashed only on the release of his 200 shares of Tisco Company which were booked by him against cash payment made on 13.6.1993. Since 200 shares were not released, therefore, the payment against cheque was stopped. The respondent did not did not lead any evidence in defense. After completion of the trial, the learned trial Court acquitted the respondent against which the instant appeal has been filed. I have heard the learned counsel for the parties and have gone through the evidence on record carefully. 3 It is an admitted case of the parties that the cheque for rupees 14750/- was issued by the respondent and the cheque bounced for want of sufficient funds. According to the case of the complainant, he had sent the legal notice to the respondent on 21.1.1994 vide registered post and the postal receipts Exhibit P5 to P7 were tendered in evidence. It is pertinent to note that copy of the legal notice alleged to have been sent to the respondent was not placed and proved on record in order to know the contents of notice. However, in reply Exhibit P10 to the aforesaid notice, the respondent has clearly mentioned the fact of booking 200 shares of Tisco company against cash payment, which were not reimbursed and it was on this under-taking that the cheque would be encashed only on the release of shares aforesaid. In his statement before the Court, the complainant has admitted the receipt of full payment of 200 shares of Tisco company at the rate of rupees 160/- vide receipt Exhibit RX dated 15.6.1993. As CW1, in his cross-examination he has admitted the case of the respondent in so many words. He stated that on 15.6.1993, he had sold 200 shares of Tisco to the respondent at the rate of rupees 160/- per share to him but according to him, he had sent/released these 200 shares and according to him, the respondent made the cash payment of 100 numbers of shares to him and qua the remaining, he issued the cheque Ext. P1. This version of the complainant is altogether different from the allegations made in the complaint wherein he had stated that the respondent had sold 100 shares of the said company on 4.8.1993, regarding which the respondent had issued the cheque aforesaid. Further, there is an also material contradiction with respect to the rate per share. In the complaint, the complainant has mentioned that the sale price of each share was rupees 180/- 4 per share whereas, Exhibit RX shows that it was sold at the rate of 160/- per share. The complainant has demolished his own story and the contradictions are irreconcilable. Even the complainant could not produce any record of sales and purchase of shares to the respondent. Rather, he deposed that he was unable to produce any record regarding the sale of 100 shares of the said company to the respondent. In the circumstances aforesaid, the cheque Exhibit P1 is proved to be without any consideration whereas, the cheque must be given in the discharge in whole or in part, of the debt or other liability to bring home the guilt of the accused to which the complainant has miserably failed to prove. The presumption both under Section 118-A and 139of the Act are rebuttable in nature. In rebutting such presumption, what is needed is to raise a probable defense. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. It has been held by the Supreme Court in M.S. Naraina Menon alias Mani-v- State of Kerala and others, (2006) 6 SCC 39, that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is preponderance of probability. The inference of preponderance of probability can be drawn not only from the materials on record but also by reference to the circumstances upon which the accused relies. The accused need not dis-prove the prosecution case in its entirety. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with that on a defendant in civil proceedings. In the instant case the complainant failed to prove basic ingredient of the offence. The accused has discharged his initial onus of proof in the aforesaid terms and the findings of acquittal 5 are borne out from the record. Therefore, the impugned judgment of acquittal passed by learned trial Court calls for no interference. The appeal is dismissed. (Surinder Singh) Judge. September 1, 2008. (bm)