TMI Blog2017 (9) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... idence but in cases involving Section 138 of the Negotiable Instruments Act, the presumption of the existence of debt liability may be rebutted. The presumption could be rebutted even otherwise on the basis of attendant sets of circumstances and it may not be necessary in each case to expect the accused to lead evidence as in a criminal trial. A statement under Section 313 of the Cr.P.C may not be the evidence of an accused as it is only in the nature of an explanation of an accused of the incriminating circumstances. There is no presumption of law that an explanation given by the accused is always truthful but once a doubt has been created regarding the existence of the debt liability, the reverse onus requirement as has been seen in Rangappa (Supra), makes it incumbent upon the respondent/complainant to prove that loan was advanced and there existed a liability. This Court finds it difficult to believe that ₹ 50 lakhs would be advanced as loan to a person who is on litigating terms with the complainant and that also by selling off his property. We have no evidence whatsoever regarding the sale of the property or mortgage of another property to establish the liquidity/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner/accused on 17.01.2012. On that date, five cheques were issued by the petitioner and a loan agreement was drawn on a stamp paper of ₹ 100/-. The petitioner is also said to have deposited, as stated earlier, the document pertaining to plot No.56, Asola Village, Fatehpur Beri. After about a month of the giving of loan, it is alleged that the property document of Plot No.56, Asola Village was taken away and was substituted with the document of Plot No.39 on the pretext of selling off the property No.56, Asola Village, Fatehpur Beri for the purposes of repayment of loan. The allegation against the petitioner/accused is of having dilly dallied thereafter. One of the cheques was presented on 19.12.2013 for clearance which was returned unpaid with the remarks payment stopped vide return memo dated 20.12.2013, which was received by the respondent/complainant on 21.12.2013. Thereafter, on 01.01.2014, four other cheques were presented by the respondent/complainant which too were dishonoured with the same remark vide memo dated 02.01.2014 which was received by the respondent/complainant on 03.01.2014. Thereafter, the petitioner did not respond to the notice and instead se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question or the mortgage of another property in favour of Rajesh Goel for garnering ₹ 12 lakhs has been brought on record. He further admits that the stamp paper (Exh.PW-1/F) was purchased on 08.02.2011. The document regarding plot No.56, Asola Village, Fatehpur Beri, New Delhi was substituted by another document of Plot No.39 of the same area. 7. In his evidence before the Trial Court, the respondent/complainant has stated that he had joined investigation in a case bearing FIR No.699/2014 (Exh.PW-1/D1). 8. He has also admitted that Exh.PW-1/D2 was lodged against him by the petitioner/accused with respect to Plot No.237, Asola Village, Fatehpur Beri. A suggestion was given to him that certain disputes had arisen between him and the petitioner/accused with respect to certain plot of land and because of that dispute, the complaint was filed so as to put pressure on the petitioner/accused to settle the dispute regarding Plot No.237. 9. On the contrary, the categorical statement of the petitioner in his 313 statement is that he had only taken a loan of ₹ 50,000/- from the respondent/complainant in cash which was returned/repaid by installment of ₹ 10,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration, 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 in the account: Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole 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 provisions of this Act, be punished with imprisonment for 1[a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. 16. In Krishna Janardhan Bhat vs. Dattatraya G. Hegde: (2008) 4 SCC 54 , the Supreme Court had the occasion to deal with the aforesaid provisions of the Act. In the aforesaid decision, the Supreme Court took the view that Section 139 of the NI Act merely raises a presumption in regard to the cheque having been issued in discharge of any debt or liability but not the existence per se of a legally recoverable debt. 17. However, in Rangappa vs. Sri Mohan, (2010) 11 SCC 441 , a three judge bench of the Supreme Court held that Section 139 of the NI Act includes the presumption regarding the existence of a legally enforceable debt or liability and that the holder of a cheque is also presumed to have received the same in discharge of such debt or liability. It was clarified in the aforesaid decision that the presumption of the existence of a legally enforceable debt or liability is, of course, rebuttable and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. Without doubt, the initial presumption is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible. When the terms of any such contract, reduced in the form of a document has been proved, no evidence of any oral agreement or statement would be admitted as between the parties to any such instrument for the purposes of contradicting its terms. 21. The document in question (Exh.PW-1/F) was compulsorily registerable as it was with respect to disposition of ₹ 50 lakhs. In the absence of this document being registered, the same was not admissible and, therefore, it cannot be presumed that it was proved by the respondent/complainant. As stated earlier, the said document does not inspire confidence. 22. Learned counsel appearing for the petitioner has taken a plea that Exh.PW-1/F, the loan document referred to above was not put to the petitioner by the Trial Court while his statement was being recorded under Section 313 of the Code of Criminal Procedure. It has been argued that it was an incriminating material as against the petitioner and though the same has not been put to him, it could not be used against him in the trial. Consequently, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 50 lakhs has to be explained or else even when such transaction is in the realm of suspicion, an imprimatur of the Court would be given if such transaction is accepted as a valid transaction. There is no gainsaying that non reflection of the loan transaction in the ITR certainly makes the loan unaccounted for, for which penalty could be imposed on the person concerned but it does not become per se unrecoverable. In the present case, seen along with the other facts, this lapse on the part of the petitioner assumes significance. It is thus difficult to presume that there existed a debt liability. 26. Though the petitioner has not stepped into the witness box to lead any evidence but in cases involving Section 138 of the Negotiable Instruments Act, the presumption of the existence of debt liability may be rebutted. The presumption could be rebutted even otherwise on the basis of attendant sets of circumstances and it may not be necessary in each case to expect the accused to lead evidence as in a criminal trial. 27. Learned counsel appearing for the respondent has raised a plea that the statement of the petitioner/accused recorded under Section 313 of the Code of Cri ..... 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