9911796707
TMI Blog2019 (1) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... 'funds insufficient'. The petitioner thereafter issued notice to the respondent which was duly served upon her, yet she failed to make the payment, constraining the petitioner to file a complaint under Section 138 of the Act. 3. The complainant/petitioner in support of his contention, examined two witnesses. Thereafter, the statement of the respondent under Section 313 Cr.P.C. was recorded. However, the respondent did not choose to lead any evidence and on the basis of the evidence on record, the learned trial Court proceeded to acquit the respondent/accused. 4. Aggrieved by the order of acquittal, the petitioner/ complainant has filed this appeal mainly on the ground that the learned Court below while acquitting the accused has failed to take into consideration the presumption attached to the Negotiable Instrument under Sections 118(a) and 139 of the Act. I have heard the learned counsel for the parties and have also gone through the material placed on record. 5. In order to appreciate the rival contentions of the learned counsel for the parties, it would be necessary to examine Sections 118(a) and 139 of the Act and the same are reproduced as under:- "118. Presumptions as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. * * * 32.The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. 41.....'23......Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man"." 8. Similar reiteration of law can be found in K. Prakashan versus P.K. Surenderan (2008) 1 SCC 258 wherein it was observed as under:- "13. The Act raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for the discharge, in whole or in part, of any debt or other liability. 15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall presume" (rebuttable) and (3) "conclusive presumptions" (irrebuttable). The term `presumption' is used to designate an inference, affirmative or disaffirmative of the existence a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof". * * * 18. Applying the definition of the word `proved' in Section 3 of the Evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability. To that extent, the impugned observations in Krishna Janardhan Bhat v. Dattatraya G.Hegde (2008) 4 SCC 54 may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessarily been convicted. To my mind, the question does not end here, the petitioner was prima-facie required to prove that the cheque had been issued in discharge of legal liability. 18. As per the allegations made in the complaint, the petitioner claimed himself to be the Manager of Vinay Service Station and it is in this capacity that he claimed that the cheque was handed over to him by the respondent towards the amount of diesel taken on credit. If that was so, then obviously it was Vinay Service Station, who alone could have filed the complaint and not the petitioner himself, who simply would at best be an agent or servant of the Principal. The liability of the respondent, if any, was towards Vinay Service Station and not the complainant/petitioner. The diesel if at all taken on credit was from the Vinay Service Station and not from its Manager i.e. the petitioner. Therefore, in such circumstances, the learned Magistrate committed no error in holding that the defence of the accused/respondent was highly probable and that the accused had rebutted the presumption under Section 139 of the Act and, therefore, rightly acquitted the respondent. 19. The accused/respondent has ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
