TMI Blog2017 (8) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... uding the subject cheque and for which a complaint also was lodged earlier. The Lower Appellate Court was absolutely justified in holding that the complainant could not prove her case regarding the existence of any legally enforceable debt against the respondent. - CRL.A.398/2017 - - - Dated:- 22-8-2017 - Ashutosh Kumar, J. For the Appellant : Mr.Vijay Kinger For the Respondent : Mr.Arun Kr.Sharma, APP. Ms.S.R.Padhy, Adv JUDGMENT Ashutosh Kumar, J 1. The appellant/complainant is aggrieved by the judgment dated 29.11.2016 passed in Crl.Appeal No.1216/2016 by the learned Additional Sessions Judge, Shahdara District, Karkardooma Courts, Delhi whereby the judgment and order of the Trial Court dated 08.09.2016/01.10.2016 convicting the respondent under Section 138 of the Negotiable Instruments Act and sentencing him to undergo SI for six months, to pay a compensation of ₹ 3,00,000/- (Rs.3 lakhs) and in default of which to further undergo SI for six months, has been set aside and the respondent has been acquitted of all charges. 2. The appellant is said to have given ₹ 5 lakhs to the respondent as family loan which was promised to be returned w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g missing of such cheque was lodged by the respondent. 5. The lower Appellate Court accepted the arguments of the respondent herein, allowed the appeal and acquitted the respondent of all charges vide judgment dated 29.11.2016. 6. The cheque in question does bear the signature of the respondent and, therefore, there is an initial presumption under Sections 118 and 139 of the Negotiable Instruments Act of the cheque having been issued in discharge of a legally enforceable debt and the existence of such a debt. 7. That a wrong cheque number was stated in the complaint may not be the end-all and be-all of the case of the appellant/complainant. The other factors also are required to be seen to decide as to whether the appellant/complainant has been able to prove his case. The original cheque was placed before the Trial Court and the same was proved as Exh.CW/A. Thus the wrong number of the cheque in the complaint would not make any difference and has to be taken as a typographical/inadvertent mistake. 8. No defence was led by the respondent but in his statement under Section 313 of the Code of Criminal Procedure, the respondent denied of having taken any family loan of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken into account, the family loan given by the appellant was repayable in two months If the stand taken by the appellant in her deposition is accepted to be correct then she had paid the money towards purchase of the flat. If at all, the money was given for purchase of flat, where was the question of return of ₹ 2 lakhs in the first instance and ultimately the return of the entire amount. If the agreement to purchase the flat did not materialize, requiring the respondent to repay the amount, this fact had necessarily to be proved by the appellant/complainant which she has not done. 11. It would be necessary in this context to refer to the provisions of Sections 118(a), 138 and 139 of the NI Act. Section 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; * * * * * Section 138 - Dishonour of cheque for insufficiency, etc., of funds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of presumption under Section 118 and 139 of the Act would ensure that the burden to prove to the contrary would be on the accused. The presumption will survive till the time the contrary is proved by the accused i.e. the cheque was not issued for consideration and in discharge of any debt or liability. 13. In Section 118 of the Act, the phrase unless the contrary is proved is similar to the one used under Section 139 of the Code and, therefore, such presumption is rebuttable. 14. An accused in a trial under Section 138 of the Negotiable Instruments Act can either show the non existence of any consideration and debt or could prove that the case of the complainant was absolutely unbelievable. This is how the presumption under Section 118 and 139 could be rebutted. Times without number, it has been clarified by the Supreme Court that to rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as is expected in a criminal trial. The offence under the Negotiable Instruments Act is merely a regulatory measure. In that event, an accused could either adduce direct evidence to prove the non existence of any debt or the liability or co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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