Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2017 (9) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (9) TMI 2014 - HC - Indian LawsDishonour of Cheque - existence of legally enforceable debt or not - failure to apply presumption, as provided under Section 139 of N.I. Act - HELD THAT:- Statutory presumptions under Sections 118 and 139 of the N.I. Act, have been duly rebutted by the accused herein not only by bringing out vital admissions during cross-examination of PW 1, but also by stepping into witness box that the cheque was not issued for any alleged debt or liability. The accused herein, in order to disprove the presumption has sufficiently brought on record the facts and circumstances, upon consideration of the same one has to believe that the consideration and the debt did not exist or their non-existence is so probable that a prudent man would under the circumstances of the case act upon the plea that it did not exist. The complainant has failed to bring on record any evidence in the form either Books of Accounts as he has been carrying the business of scrap or returns of Sales Tax or Income Tax in order to substantiate his contention that he had, in fact, delivered scrap worth Rs. 10 lakhs to the accused. In the case at hand the accused has rightly rebutted the presumptions on the basis of complaint, reply to the notice as well as from the cross-examination of the complainant. After having rebutted the presumption, which is acceptable in all the circumstances of the case and on preponderance of probabilities, the burden shifted back to the complainant, which he failed to discharge and there is no question of presumption again under Sections 118 and 139 of N.I. Act, coming to the rescue of the complainant. In the case of RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT], the Hon'ble Supreme Court held that the presumption under Section 139 includes the presumption that there exists legally enforceable debt or liability. Nevertheless, such presumption is rebuttable in nature and it depends on the facts and circumstances of each case. As such, there is no doubt that there is an initial presumption which always favours the complainant. The learned trial Court has thus, considered all the aspects of the case and rightly reached a conclusion that the complainant has failed to prove the case under Section 138 of the N.I. Act and thereby rightly acquitted the accused. The acquittal passed by the trial Court, therefore, cannot be set aside without any sound and sufficient ground. It is a settled law that if two views are possible, then a view which supports acquittal of the accused should not be interfered with lightly. There is no substance in the appeal. The impugned judgment does not call for any interference and, therefore, the appeal stands dismissed.
|