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TMI Blog2019 (1) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... rious apple orchards with the road head so as to provide facility to the growers to carry their produce from the orchards. 3. During the apple season in the year 2011, accusedrespondent No.1 purchased apple crop of various growers in villages Kutwa, Dohva and surrounding areas in Phati Buchhair, Tehsil Anni directly from orchards and thereafter the same was carried towards road head through the rope way span of the appellant. This was pursuant to a bargain entered into between the appellant and respondent No.1 wherein it was further agreed that respondent No.1 would purchase entire packing material from the appellant and thereafter forward the entire apple crop in the apple market through the forwarding agency of the appellant named and styled as "Uttam Ram Forwarding Agency, Gugra-Chowai". However, later on, the apple produce was forwarded by respondent No.1 through his personal arrangement, but the entire packing material was procured from the appellant on credit basis through an authorized agent namely Prem Chand son of Shri Kumat Ram. As per the agreement, the appellant supplied packing material to respondent No.1 and also paid a sum of Rs. 2,00,000/- to him for meeting out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that respondent No.1 has not only probabilized his defence, but proved the nonexistence of consideration through the appellant's evidence. Therefore, in such circumstances, no exception can be taken to the judgment of acquittal passed by the learned trial Magistrate. 8. I have heard the learned counsel for the appellant and have also gone through the material placed on record. 9. 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 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; 1[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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er its existence to be reasonably probable, the standard of reasonability being that of the "prudent man"." 12. 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 rebuttable in nature...... 14. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability." 13. To the same effect is the decision of the Hon'ble Supreme Court in Krishna Janardhan Bhat versus Dattatraya G. Hegde (2008) 4 SCC 54 wherein the Hon'ble Supreme Court observed as under:- "32.....Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. * * * 34. Furthermore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (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 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. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof." 18. Bearing in mind the aforesaid exposition of law, it can conveniently be held that in terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No.1, is adverted to, then it would be noticed that he stated that he purchased 5000- 6000 apple cartons from the appellant out of which 2600 apple cartons were carried through the span of the appellant and also forwarded to the apple market through the forwarding agency of the appellant. 24. Now, what emerges from the evidence of the appellant are three separate and distinct versions on record regarding the number of apple cartons that were carried through the span of the appellant and forwarded through his forwarding agency. The appellant in the complaint states that the number of such cartons were 5000, however, while appearing as CW-2, he states that number of such cartons were 4000, whereas, CW-3 states that number of such cartons were only 2600. 25. Apart from the above, it would be noticed that the entire foundation of the complaint is receipt Ex.CW1/D, but then the same admittedly is not signed by respondent No.1 and has been signed by CW-3 Prem Chand and against that it has been written 'Munshi'. 26. Mr. Bhardwaj would claim that CW-3 'Munshi' had executed this receipt acknowledging that an amount of Rs. 5,38,856/- was due and payable by respondent No.1. However, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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