Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (7) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (7) TMI 1026 - MADHYA PRADESH HIGH COURTDishonor of Cheque - acquittal of the accused from the charges - legally enforceable debt or not - raising of presumptions - rebuttal of presumptions - Onus to prove - Section 138 of Negotiable Instruments Act - HELD THAT:- In the present case, the accused has admitted signature on the cheque in question. As per the scheme of the NI Act once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118 of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. It has been held by a three-judge bench of the Hon'ble Apex Court in the case of RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT] that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. In the present case, the complainant examined himself as the sole witness. To raise the presumption of cheque having been issued in discharge of legally recoverable debt and drawn for lawful consideration arising by virtue of Section 118(a) and Section 139 of NI Act, the testimony of the complainant must be of such a character as to be believed as gospel truth because the complainant has accepted that there was no witness to the transaction. The perusal of oral as well as documentary evidence produced by the complainant shows that there is no mention in the notice sent to the accused that the alleged amount of money was given to the accused as a loan - the presumption of existence of a legally enforceable debt can not be drawn as it has been rebutted by the circumstances itself. The learned trial court has rightly hold that the cheque in question was not issued by the accused for the discharge of his legal liability as the presumption stood rebutted by the circumstances itself. Consequently, it can be said that no legal liability exists in favour of the complainant, thus, the second ingredient to the offence under section 139 of NI Act does not stand proved. Cogent evidence is required to be proved beyond reasonable doubt to secure conviction in a criminal trial which lacks in the present case. Appeal dismissed.
|