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2020 (10) TMI 312 - HC - Indian LawsDishonor of Cheque - Offences punishable u/s 138 of NI Act - rebuttal of resumption - Sections 118 and 139 of the Act - HELD THAT:- Section 118 of the Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. That apart, Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act are very much available to the complainant and the burden shifts on the accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. Having regard to the materials on record, this Court is of the view that the accused failed to adduce evidence to rebut the presumption or a probable case to shift the burden to the complainant. On going through the impugned judgment, this Court is of the view that the appellate court correctly applied the presumption under Section 139 of the Act. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. In the case at hand, the accused has no case that he has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. Even a blank cheque leaf voluntarily signed and handed over by the accused, which is to some payment, would attract the presumption under Section 139 of the NI Act in the absence of cogent evidence to show that the cheque was not issued in discharge of a debt. PW1 adduced evidence to show that he had advanced the amount and the cheque was given to him in repayment of the same. On analyzing the entire evidence in detail, the trial court as well as the appellate court entered a finding that the offence under Section 138 of the NI Act is proved beyond doubt. No interference is warranted in revision. The sentence imposed by the trial court as confirmed by the appellate court stand modified as follows; i.The revision petitioner/accused is sentenced to pay a fine of ₹ 75,000/- and in default of payment of fine to undergo simple imprisonment for three months. ii. In view of the Covid-19 pandemic, the revision petitioner/accused is given six months time to deposit the amount before the trial court. Thus, the fine amount shall be deposited in the trial court within six months time from this date, failing which the accused shall undergo simple imprisonment for three months. iii. In case, the fine amount is deposited as ordered, the same shall be released to the 1st respondent/complainant as compensation in accordance with law - Revision petition allowed.
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