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2019 (8) TMI 248 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - acquittal of accused - complainant failed to prove execution of the cheque by the accused and the presumption under Section 139 of the Act cannot drawn in his favour and found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him - HELD THAT - The denial of execution and transaction canvassed by the accused, necessarily, has to be appreciated in the totality of the facts and circumstances presented in the case. It is well settled that where execution of the cheque is denied it has to be proved by the complainant. But, what is the rigour of proof that is required to prove the execution, where there is denial by the accused, depends upon the facts and circumstance involved in the case. In the instant case, there is no sufficient reason to disbelieve the evidence of PW1 that the accused made the entries in the cheque and signed it and gave it to him. When the evidence of PW1 is appreciated in the totality of the facts and circumstances presented in the case and in the context of the unreasonable and improbable plea raised by the accused, it can very well be found that his evidence is sufficient to prove that Ext.P1 cheque was drawn and delivered to him by the accused - Once execution of the cheque by the accused is proved, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. It is obligatory on the court to raise the presumption under Section 139 of the Act in every case where the factual basis for raising the presumption had been established. It is a presumption of law as distinguished from a presumption of fact. When the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In the present case, no attempt whatsoever was made by the accused to rebut the presumption under Section 139 of the Act. It is not essential that the accused should adduce evidence of his own to rebut the presumption. It is enough if he succeeds in discharging the burden to rebut the presumption by the cross examination of the complainant or by bringing in probabilities in his favour and improbabilities against the complainant. But he has to prove that his version is probable and acceptable and competes in probabilities convincingly with the version of the complainant. That burden remains undischarged in the facts and circumstances of this case - the complainant had proved that the accused had drawn and delivered Ext.P1 cheque to him. The accused could not rebut the presumption under Section 139 of the Act. It follows that the complainant has been able to prove that the accused committed an offence punishable under Section 138 of the Act. The impugned judgment of acquittal warrants interference. Appeal allowed - decided in favor of appellant
Issues:
Challenge to trial court's acquittal under Section 138 of the Negotiable Instruments Act, 1881. Analysis: 1. The appellant, as the complainant, challenged the trial court's judgment acquitting the accused of the offence under Section 138 of the Act. The complainant alleged that the accused borrowed ?35,000 and issued a cheque dated 28.09.2007, which bounced due to insufficient funds. The complainant sent a lawyer's notice demanding payment, but the accused did not respond. 2. The trial court found the complainant failed to prove the cheque's execution by the accused, thus acquitting the accused. The complainant presented evidence, including the cheque, bank memorandums, lawyer notice, and the cover returned by postal authorities. The complainant, as PW1, testified in line with the complaint. 3. The accused claimed he borrowed ?5,000 from a friend of the complainant, using the cheque as security. However, the accused failed to provide evidence of this transaction or that he gave the cheque as security. The trial court doubted the complainant's evidence due to discrepancies in dates and handwriting on the cheque. 4. The trial court rejected PW1's evidence, citing discrepancies in dates and handwriting on the cheque. However, the High Court found the discrepancies not substantial enough to discredit PW1's testimony. The court noted the accused's lack of explanation on how the cheque reached the complainant. 5. The High Court emphasized that once the cheque's execution is proven, the presumption under Section 139 of the Act applies. The burden then shifts to the accused to rebut this presumption. In this case, the accused failed to provide a credible explanation or evidence to counter the presumption. 6. The High Court concluded that the complainant successfully proved the accused's issuance of the cheque and the accused failed to rebut the statutory presumption. Therefore, the trial court's acquittal was overturned, and the accused was convicted under Section 138 of the Act. The court ordered the accused to pay ?60,000 as compensation to the complainant, with a deadline for payment and consequences for non-compliance. 7. The judgment highlights the civil-criminal nature of Section 138 cases, emphasizing restitution for the complainant. The High Court's decision serves as a reminder of the burden of proof in cheque bounce cases and the importance of credible evidence to rebut statutory presumptions.
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