Interested Friends can read this, it may useful for U WRITTEN ARGUMENT SUBMITTED BY THE ACCUSED. It is submitted that:- 1. Case of the complainant:-The case of the complainant is that the accused borrowed a hand loan of Rs 1,000,00/- from the complainant on xx.xx.xx with a promise to repay it with interest before xx.xx.xx and issued a post dated cheque on xx.xx.xx dated xx.xx.xx for Rs. 1,000,00/-. As per the request of the accused complainant deposited the cheque on xx.xx.xx in the bank and it was returned for reason of Account closed. Notice issued on xx.xx.xx, payment not made within the statutory period, hence the case. 2.Defence of the accused:- is that she is not borrowed any amount from the complainant as hand loan, instead she entered a sale agreement with the complainant regarding a property owned by the accused for a value of Rs:- 1,20,000/- and as a guarantee for the proper execution of the sale deed, she issued a blank cheque to the complainant at the time of execution of sale agreement the complainant with a condition that the cheque have to be returned after the execution of proper sale conveyance, but the complainant refused to do the same and on vengeance of filing a civil suit the complainant filed this case. There is no legally enforceable dept or liability. 3. The complainant examined himself as PW1 and marked documents A1 to A4. 4. At the time of the cross examination of the complainant by the accused, accused marked D1 to D3 through the complainant. 5.Points submitted by the accused (a). The accused not given any reply to the statutory notice issued by the complainant and she has not examined herself as witness or produced any witness to prove her case. It is fatal to the case of the accused? The citations produced as Citation No 3 (R.B. Ramakrishnan V A.Meena- Madras High Court, reported in 2011(2) DCR 696), 5 (A.Krishnan v S.Marimuthu- Madras High Court on 22/10/11.reported in Indian Kanoon Doc No.196621108), and 6 (Krishna Janardhan Bhat v Dattatraya- Supreme court of India. Reported in AIR 2008 SC 1325) authorising that Citation 3:-“Mere failure to send reply notice will not take away the right of the party to contest the case” (Para 8) (R.B. Ramakrishnan V A.Meena- Madras High Court, reported in 2011(2) DCR 696),. Citation 5:- This court is of the view that though the petitioner(accused here) had not caused reply to the statutory notice or entered the witness box, he has succeeded in discharging the burden cast upon him under section 139 of the negotiable Instruments Act by preponderance of probabilities. (para 7) (A.Krishnan v S.Marimuthu- Madras High Court on 22/10/11.reported in Indian Kanoon Doc No.196621108) Citation 6:-An accused for discharging the burden of proof upon him under a statute need not examine himself. He may discharge his burden on the basis of the material already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. (para 23) (Krishna Janardhan Bhat v Dattatraya- Supreme court of India. Reported in AIR 2008 SC 1325) . (b). Whether the accused rebutted the presumption of law mandated under section 118 and 139 of the Negotiable Instruments Act? The accused has successfully rebutted the statutory presumption by the cross examination of the complainant. This court must either believe the defence to exist or consider its existence to be reasonably probable standard of reasonability to be that of a prudent man. In the cross examination of the complainant it is brought before this court that:- (a). “At the time of borrowing hand loan accused promised to repay the loan amount with bank interest”. “Agreed to repay the amount on xx.xx.xx.In this complaint no interest is claimed. There is no reason for not claiming interest”. Here, it is pertinent to note that complainant state in his complaint as well as in the evidence that at the time of borrowing money on xx.xx.xx itself accused issued the post dated cheque for the repayment of loan amount of Rs:-one lakh. He further state that at the time of borrowing money it is agreed that borrowed amount shall be repaid with interest. But in the cheque there is no interest calculated at the time. The complainant further answered in his cross examination that except the cheque there is no other document to show, he given huge amount as loan to the accused. It is unbelievable that, as loan is given on interest, but the alleged cheque is issued on the day of giving loan without any interest. A huge amount given to the accused without claiming any interest and without any other document except the cheque. The authority given in the Citation No 8. Jhon. K.Jhon v Tom Varghese & Anr- Supreme Court of India, reported in 2008 Cr.L.J 434 it is decided that “ Dishonour of cheque- Discharge of dept- rebuttal of presumption under section 139- court can take notice of conduct of parties- respondent alleged to have borrowed huge sum from appellant –complainant despite suits for recovery of defaulted amount filed against him by appellant- No document executed- amount advanced carrying no interest- finding of fact by high court that respondent did not issue cheques in discharge of any dept and discharged of burden of proof cast on him under section 139- Being perverse cannot be interfered with under Art 136 (para 10). Even in a case where the accused did not lead any evidence in rebuttal, it does not mean that the accused could not take advantage of the cross-examination of the complainant in rebutting the presumption. The presumption could be rebutted either by the accused leading evidence or bringing facts on record in cross-examination of the complainant, which could make the case of the complainant improbable that the cheque was issued in discharge of any dept or other liability or other documents produced and proved through the complainant. The evidence which has come on record itself creates a doubt about the loan transaction alleged by the complainant the accused is entitled to the benefit of doubt which has to be righty give. The accused has brought out various inconsistencies and infirmities in the case of the complainant by cross-examination whereby a serious doubt about the loan transaction which has been alleged by the complainant, Such as :- In the complaint in para No 3 “ the accused also promised to sell a piece of land and a school building at xxxx Village. The respondent/ accused shown her house at xxxxx and offered to sell the same to the complainant, but the complainant were not interested to purchase the house. The Respondent/ accused approached the complainant and requested an immediate loan of Rs-1,00,000/- as she is making arrangements to mortgage her house for Rs:-5,00,000/- and promised to return the amount of Rs:-1,00,000/- with interest before xx.xx.xx. In the cross examination he answered that in para 3 of the complaint stated the accused have a school at xxxxx and he is not interested in purchase the same. He further answered that he does not have any other transaction between the accused. But contrary to the above the accused marked D1 a sale deed made on xxxxxxin favour of the complainant regarding the above land . In the next question he answered that, he is not remembering that whether he paid Rs:- 1,20,000/- in cash to the accused on purchase. The complainant admitted that the accused filed a civil suit before the court bearing No O.S. No.122/22. But he answered he is unaware about the contents of the plaint in this suit. To a specific question that:- the allegation in the case is that the complainant fraudulently obtained the signature of the accused in the sale deed, he answered as he is unaware. He further answered that he is not aware that whether he stated in his written statement regarding the money transaction in this case. He further answered that he is not remembering that whether he stated about the pending suit in between them in this complaint. He admitted in the cross examination that after filing of the civil suit by the accused only he deposited the cheque before the bank. By the above inconsistencies and infirmities in the cross examination the accused rebutted the presumption and put her defence as suggestion to the complainant that “ There is no liability to pay any money to complainant, for the money complainant given to the accused, he purchased property from the accused and only on the vengeance upon that the accused filed civil suit against the complaint, he filed this case, he denied the suggestion, but not came forward to prove the allegation. It would be pertinent to note that the cheque in question was dated xx.xx.xx which was deposited by the complainant on xx.xx.xx under a pretext that accused requested him further time for the payment. But by this time there was no cordial relationship in between them. It is pertinent to not that the sale deed was executed on xx.xx.xx for a consideration of Rs:-1,20,000/- If the accused liable to pay Rs:-1,00,000/-to the complainant, he would have deduct that amount from the consideration he paid. So it is submitted that on consideration of the above evidence on record this court may please to come to a conclusion that the accused has by cross examination of the complainant raised a serious doubt about the alleged loan transaction, therefore, considering the facts and circumstances of the case, the accused has successfully rebutted the presumption under section 139 of the act by raising a probable defence and therefore, the complainant is not entitled to any relief under section 138 of the act. The Bombay high court decided a case more similar to the fact of the case decided in Citation No.4.Mrs.Rosa Maria Fernandes v Nauso.N.Kepkar- Bombay High Court(Goa Bench) reported in 2010 Cr.L.J.2159 as:-Dishonour of cheque- Legally enforceable dept-theory of “Loan transaction’ propounded by the complainant- accused through cross examination of complainant, demonstrated that complainant did not have financial capacity to advance loan-various inconsistencies and infermities in evidence of complainant-As per evidence on record and conduct of complainant case of accused, that after execution of sale deed in favour of complainant cheques were to be returned to accused appearing to be, more probable-accused successfully rebutted presumption under section 139 by raising a probable defence –Complainant not entitled to any relief.(para 18) and Citation13.Kamala V Vidyadharan- Supreme Court of India, reported in 2007 (1) DCR 321 para 17,&18 the similar view is taken. (c) whether the burden of proof shifted to the complainant and he discharged the same? The accused by cross examination of the complainant brought on record of a probable defence based on preponderance of probabilities . The accused proved the non-existence of consideration by raising a probable defence by showing that the existence of consideration was improbable or doubtful and onus shifted to the complainant. To rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal case. In the authority given in Citation 7. M.S. Narayana Menon @ Mani v State of Kerala- Supreme Court of India, reported in 2006(3) CTC 730 it is held that “ Negotiable Instruments Act, 1881, sections 118(a) & 139- evidence act 1872, section 3 & 4 – presumption of fact- shall presume a fact- presumption is legal or factual presumption drawn from existence of certain facts- presumption drawn under statue has only evidentiary valve- Presumption drawn in respect of one fact may be evidence even for purpose of drawing presumption under another- -------person against whom presumption is drawn has to discharge initial burden of proof and he need not disprove prosecution case and discharge of proof is question of fact and matter of appreciation of evidence- If defendant in Civil case may not adduce evidence to discharge initial burden of proof placed on him in such situation, accused in criminal case against whom such presumption is raised need not enter into witness box and examine other witness in support of his defence- Onus of accused in criminal case is not as havy as that of prosecution and he may be compared with defendant in Civil Case ( para 31,32,33,34,38, 39 of citation 7), ( Para 22,29,35,23,24,25,26 of Citation 6 Krishna Janardhan Bhat v Dattatraya- Supreme court of India. Reported in AIR 2008 SC 1325) &Citation No. 11. K.Prakashan v P.K. Surenderan. -Supreme Court of India, reported in 2008(1) DCR 151 para 12) similar view is taken. In citation No 1010.N.I.Shaji v T.K. Paulose – Kerala High Court, reported in 2010(1) DCR 609 it is held that A defence projected by the accused in a case under section 138 of N.I.act has to be assessed with refrance to the facts and circumstances presented and material produced in the case and if his version is found probable, then it has to be considered whether the presumption under section 139 of the N.I.Act has been rebutted casting the burden on the complainant to prove his case which may demand satisfactory evidence on the execution of the instrument and also the transaction covered by the instrument. Para 11 & 12 (d). Whether the complainant proved its case beyond reasonable doubt? The prosecution must prove the guilt of an accused beyond reasonable doubt. The non production of sale deed (D1) and suppressing the material facts of the existence of D2 & D3, by the complainant is for the reason if it is produced it would come to the light that the cheque were obtained by the complainant from the accused as security purpose for the proper execution of the sale deed . the documents produced by the accused on the cross examination of the complainant is admitted by the complainant, so the geniuses of the complainant case is in question and it is the burden of the complainant to prove his case beyond any reasonable doubt. As decided in Citation No 2. Shrimathi v Renuka- Karnataka High Court, reported in 2010 Cr.L.J.372 para 19,20 & Citation 6 Krishna Janardhan Bhat v Dattatraya- Supreme court of India. Reported in AIR 2008 SC 1325) It is the settled principle that in a criminal case, the accused need not prove his defence version beyond reasonable doubt, but the complainant has to prove his case beyond reasonable doubt. Prayer:- Therefore when the complainant himself failed to prove the very factum of lending of said amount of loan to the accused, the existence of legally enforceable debt as on date of the said cheque and also the cheque issued by the accused to discharge the loan liability to the complainant, This court may please to come to a conclusion that the complainant not established the case against the accused beyond reasonable doubt. On the other hand the accused has probabilised her defence that the cheque was issued as a security to the complainant in connection with the land transaction and thus render justice. Dated at on this the day of 2014. Advocate for Accused. LIST OF CITATIONS SUBMITTED BY THE ACCUSED 1. Negotiable Instruments Act section 139 with Synopsis, 2. Shrimathi v Renuka- Karnataka High Court, reported in 2010 Cr.L.J.372. 3. R.B. Ramakrishnan V A.Meena- Madras High Court, reported in 2011(2) DCR 696. 4.Mrs.Rosa Maria Fernandes v Nauso.N.Kepkar- Bombay High Court(Goa Bench) reported in 2010 Cr.L.J.2159. 5. A.Krishnan v S.Marimuthu- Madras High Court on 22/10/11.reported in Indian Kanoon Doc No.196621108. 6.Krishna Janardhan Bhat v Dattatraya- Supreme court of India. Reported in AIR 2008 SC 1325. 7. M.S. Narayana Menon @ Mani v State of Kerala- Supreme Court of India, reported in 2006(3) CTC 730. 8. Jhon. K.Jhon v Tom Varghese & Anr- Supreme Court of India, reported in 2008 Cr.L.J 434. 9. S. Timmappa v L.S. Prakash- Karnataka High court, reported in 2010 Cr.L.J 3386. 10.N.I.Shaji v T.K. Paulose – Kerala High Court, reported in 2010(1) DCR 609. 11.K.Prakashan v P.K. Surenderan. -Supreme Court of India, reported in 2008(1) DCR 151. 12. Rajendran v N.Radhakrishnan,- Madras High Court, decided on 17/07/2012. 13.Kamala V Vidyadharan- Supreme Court of India, reported in 2007 (1) DCR 321. 14. Vijay v Laxman- supreme Court of India, Decided on 07/02/2013.
Posted on: Sun, 14 Dec 2014 06:52:35 +0000
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