TMI Blog2017 (6) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... refute the evidence of CW-1 about the acknowledgement of the liability to that extent by document Ex.CW-1/4 or the promissory note (Ex.CW-1/5) contemporaneously prepared and executed. Thus the defence pleaded by the respondent in answer to the notice under Section 251 Cr.P.C. has remained unsubstantiated. Mere admission of the complainant that he was earning only ₹ 12,000 per month from small business or his failure to file income tax returns, or his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. The respondent is held guilty and convicted for offence under Section 138 Negotiable Instruments Act, 1881. - Crl.A. 98/2017 - - - Dated:- 31-5-2017 - MR. R.K. GAUBA J. Appellant Through: Mr. Ankur Jain, Adv. Respondent Through: Mr. Paritosh, Adv. with respondent in person. MR. R.K. GAUBA JUDGMENT 1. The appellant had instituted criminal complaint, registered as CC No. 832/2015 (New number 3008/2016), on 7.1.2010 seeking prosecution of the respondent herein for offence under Section 138 of Negotiable Instruments Act, 1881. The Additional Chief Metropolitan Magistrate (ACMM) to whom the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an additional amount of ₹ 3 lakhs, against this backdrop, promising to return the entire amount within four months. The complainant alleged that out of sympathy towards the pitiable condition of the respondent he had extended further amount of ₹ 3 lakhs to her on 9.9.2009 which was duly acknowledged by her, she taking back the previous cheque dated 12.8.2009, issuing fresh cheque bearing No. 130329 dated 15.11.2009 for total sum of ₹ 5 lakhs, the said cheque, thus, being post-dated, in favour of the complainant, drawn against account of the respondent in Canara Bank, Patparganj, Delhi. It was alleged that the said cheque when presented again returned unpaid with reasons insufficient funds on 19.11.2009. The complaint alleged that on 2.12.2009, on the assurance of the respondent, the said cheque was again presented but it was again returned dishonoured on 5.12.2009. It is thereafter that the complainant addressed another legal notice dated 6.12.2009 sent, inter alia, by registered AD post on 8.12.2009 inspite of which the respondent did not make payment and thereby having committed offence under Section 138 of Negotiable Instruments Act. 5. The complainant led ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent used to take money from him as interest free loan in the past against which she would give him cheques which he would return upon the money being repaid, pronote for each such transactions also having been executed but destroyed after the liability had been discharged. He referred to one Chhotu as a witness to the transaction wherein the previous loan of ₹ 2 lakhs had been enlarged to the extent of ₹ 5 lakhs by further loan of ₹ 3 lakhs due to the circumstances mentioned above. The said Chhotu admittedly has not been produced in evidence. Questions were raised as to the correctness of the address (B-11, Vikalp Apartment, Plot No. 42, I.P. Extn., Delhi-110092), at which the legal notice of demand dated 6.12.2009 (Ex.CW-1/10) had been sent. It appears that earlier against the backdrop of bouncing of the cheque dated 12.8.2009, the legal demand notice (Ex.CW-1/1) dated 25.8.2009 had been sent to the respondent at similar address, the plot number mentioned therein being 92, rather than 42, as mentioned concerning the cheque which is the subject matter of the case at hand. It, however, must be observed here that the address at which the legal demand notice lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 138 Negotiable Instruments Act, the provisions contained in Section 118 (to the extent relevant here) and Section 139 Negotiable Instruments Act are also relevant and may be taken note of as under:- 118. Presumptions as to negotiable instruments. - Until the contrary is proved, the following presumptions shall be made:- (a) of consideration -that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date -that every negotiable instrument bearing a date was made or drawn on such date; xxx (g) that holder is a holder in due course -that the holder of a negotiable instrument is a holder in due course: xxx 139. Presumption in favour of holder.- 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 for the discharge, in whole or in part, of any debt or other liability . 14. It may be added here that in terms of Section 142 of Negotiable Instruments Act, the prosecution for of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 234 , in the context of stop payment instructions , the Supreme Court explained the mode of rebuttal of the presumption thus: 19. The authority shows that even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the stop-payment instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stoppayment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. (emphasis supplied) 17. In relation to the nature of presumption contemplated by Section 139 of Negotiable Instruments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. Because both Sections 138 and 139 require that the court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn, it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard or proof. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities . Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own . (emphasis supplied) 21. It is clear from the above overview that once the execution of the cheque is admitted, the complainant having been proved to be the payee of the cheque, or its holder in due course, statutory presumptions under Sections 118 and 139 of Negotiable Instruments Act arise to the effect that such cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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