Point of Law: once execution of the promissory note is admitted, or proved, the presumption under Section 118(a) of the Act would arise that it is supported by consideration. It is a rebuttable presumption. The accused can prove non-existence of consideration by raising a probable defence. If he proves to have discharged the initial onus of proof that the existence of consideration was improbable or doubtful, the onus shifts back to the complainant, who will be obliged to prove it as a matter of fact, and on his failure to discharge the burden, he will be disentitled to get a relief.

JUDGMENT :

Appellant is the complainant in C.C. No.103/2010 on the file of the Judicial First Class Magistrate-II (Additional Munsiff), Kasaragod. The complaint was instituted by the appellant alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881, hereinafter referred to as the Act. According to the appellant, in consideration of a sum of Rs.1,75,000/- borrowed from him by the 1st respondent, a cheque for Rs.1,75,000/- dated 25.06.2009 drawn on Bayar Service Co-operative Bank, Bayar was issued to him. He presented the cheque for collection, but it was returned dishonoured on 05.10.2009 due to insufficiency of funds. The matter was duly intimated to the 1st respondent through a lawyer notice, which was served on him. But the amount was not paid nor a reply was sent and, aggrieved by the same, he moved the complaint. On appearance on summons, the 1st respondent pleaded not guilty.

2. The complainant gave evidence as PW1 and Exts.P1 to P4 were marked. On closing the evidence of the complainant, when examined under Section 313(1)(b) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., the 1st respondent denied the allegation that he had borrowed Rs.1,75,000/- and issued the Ext.P1 cheque in consideration of the same. He admitted the borrowal of Rs.30,000/- from the complainant, but denied the other handwritings on the cheque. According to him, he had given the Ext.P1 as signed blank cheque to the appellant, which has been misused by incorporating a huge amount as consideration; there is no legally enforceable liability to pay Rs.1,75,000/-; Ext.P3 notice is barred by limitation.

3. There was no evidence in defence for the 1st respondent. On the contentions, three points were raised by the learned Magistrate. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found not guilty and acquitted the 1st respondent under Section 255(1) Cr.P.C. Aggrieved by the same, the complainant has preferred this appeal under Section 378(4) of the Cr.P.C.

4. I heard the learned counsel on both sides. The trial court records were summoned and perused.

5. According to the learned counsel for the appellant, though the statutory notice was duly served on the 1st respondent, he did not give a reply; thereafter, even though he disputed the financial capacity of the appellant to lend that much money, no evidence was adduced nor a probable version was urged before court, to rebut the presumption available in favour of the appellant. After having admitted the issuance of the Ext.P1 cheque he cannot be heard to say that he had borrowed only Rs.30,000/- from the appellant. In this connection, the learned counsel placed reliance on the decision reported in Bir Singh v. Mukesh Kumar [AIR 2019 SC 2446]. Regarding the contention that the appellant had no financial capability to lend so much money, the learned counsel placed reliance on an unreported decision of the Karnataka High Court in Crl. A. No.2109/2017 and also in Rohitbhai Jivanlal Patel v. State of Gujarat and another [AIR 2019 SC 1876]. The counsel concluded that the appellant is financially sound enough to lend that much money; that the presumption is in his favour and thus, the trial court erred in acquitting the 1st respondent.

6. On the other hand, the learned counsel appearing for the 1st respondent pointed out that the appellant is a tailor by profession and that his monthly income is only Rs.2,000/-. He has no other source of earning. Even though the 1st respondent did not send a reply to the lawyer notice nor did enter the box, from the examination of PW1, it is clear that he had challenged the very financial capacity of the appellant to arrange so much money. Even when it was claimed that he had borrowed money from the bank and had pledged gold ornaments, no evidence was tendered before the trial court to prove the financial capacity of the appellant. The learned counsel also relied on the decision reported in Basal