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TMI Blog2019 (9) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... f conviction and sentence. 2. Briefly stated, facts of the case as emerge from the record, are that respondent-complainant (hereinafter, 'complainant') instituted a complaint under S.138 of the Act in the court of Judicial Magistrate 1st Class, Court No. VI, Shimla, alleging therein that in the year 2014, accused approached him seeking financial help of Rs. 1,50,000/-, for making payments in other cases instituted against her under S.138 of the Act, which at the relevant time were pending in different courts. Complainant provided a sum of Rs. 70,000/- on 16.4.2014 and another sum of Rs. 80,000/- on 25.4.2014, after borrowing the same from his friends. Though the accused promised to repay the same within a period of one month, but subsequently, she with a view to discharge her liability, issued cheque bearing No. 076049 dated 18.6.2014 (Ext. CW-1/A) amounting to Rs. 1,50,000/- in favour of the complainant, drawn on account No. 20163042399, maintained by her with the Allahabad Bank, Shimla. However, the fact remains that the aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the account of the accused, vide memo dated 26.7.2014 (Ext. CW-1/B) Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid background, accused has approached this Court in the instant proceedings. 6. Having heard learned counsel for the parties and perused the material available on record, this Court finds no force in the arguments of Mr. S.D, Sharma, learned counsel for the accused that after passing of judgment dated 3.11.2017 by this Court in Cr. Appeal No. 295 of 2017, it was not open for the Court below to re-appreciate the evidence, on the basis of which it had already acquitted the accused. Careful perusal of earlier judgment rendered by this Court, clearly reveals that while remanding case back, this court categorically observed in para- 12 that, "from the aforesaid discussion, it is clearly established that learned trial Magistrate has not correctly applied the law and therefore, the order of acquittal as passed cannot withstand judicial scrutiny and deserves to be set aside. Ordered accordingly." 7. This Court, while setting aside order of acquittal also clarified that it has not gone into the relative merits of the case and Court below would try to decide the case afresh strictly as per its facts and in accordance with law. Close scrutiny of the material available on record vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Rs. 70,000/- on 16.4.2014 and Rs. 80,000/- on 25.4.2104, after borrowing the same from his friends. Accused issued cheque Ext. CW-1/A, but the same was dishonoured vide Ext. CW-1/B by the Banker of accused. Complainant issued demand notice, Ext. CW-1/C, through his counsel. Accused neither replied to demand notice nor made any payment within the period prescribed in the same. Aforesaid witness in his cross-examination categorically stated that he is working as a Carpenter in MES Jutogh and getting Rs. 33,000/- per month. This witness also admitted that accused was facing criminal complaint under S.138 of the Act in Court No.2, Shimla, wherein he stood surety to the accused. This witness categorically stated that he obtained Rs. 50,000/- from his friendsnamely Raju and remaining amount from another friend namely Stephen Deen. This witness also admitted that signature over cheque is in different ink and date is in different ink. He categorically denied the suggestion put to him that a blank cheque was given to him. 10. Accused, Geeta Devi, while deposing as DW-1, stated that the complainant, who is related to her, stood her surety in another case and obtained cheque as security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive evidence or by referring to material, if any, adduced, on the record by the complainant, but, in the case at hand, accused has miserably failed to raise probable defence, much less sufficient defence to rebut the presumption available in favour of the complainant under Ss. 118 and 139 of the Act. Close scrutiny of material available on record compels this Court to agree with Mr. Vaibhav Tanwar, learned counsel for the complainant, that there is absolutely no evidence available on record to probabilise the defence so projected by accused that the cheque was issued as a security. Accused with a view to set up aforesaid plea was required to substantiate the same by leading cogent and convincing evidence but, in the case at hand, accused even during her statement under S.313 CrPC, has not denied the factum with regard to issuance of cheque but has taken a plea that the cheque was given to the complainant as security. Mere statement of the accused is not sufficient to prove that the cheque in question was issued as a security, rather the accused, with a view to rebut the presumption available in favour of the holder, is/was under obligation to prove by leading positive evidence tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof". The Court further observed that 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 all preponderance of probabilities. 24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant. 25. It is no doubt true that the dishonour of cheques in order to qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e now summarise the principles enumerated by this Court in following manner:- (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 27 (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 28 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come in the witness box to support his defence. 24. Applying the preposition of law as noted above, in facts of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mained totally un-shattered, because at no point of time, suggestion, if any, qua aforesaid aspect of the matter came to be put to the complainant. 21. Hon'ble Apex Court in Rohitbhai Jivanlal Patel vs. State of Gujarat & Anr, Cr. Appeal No. 508 of 2019, decided on 15th March, 2019, has held that in view of statutory presumptions as contemplated under Ss.118 and 139 of the Act, onus is shifted upon the accused and unless accused discharges said onus by leading evidence on record as to show preponderance of probabilities tilting in his favour, complainant's case cannot be disbelieved for want of evidence regarding source of funds for advancing as loan to the accused. Hon'ble Apex Court in the judgment (supra) has held as under: "17. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been of irrelevant factors for consideration of a probable defence of the appellant. Similarly, the factor that the complainant alleged the loan amount to be Rs. 22,50,000/- and seven cheques being of Rs. 3,00,000/- each leading to a deficit of Rs. 1,50,000/-, is not even worth consideration for the purpose of the determination of real questions involved in the matter. May be, if the total amount of cheques exceeded the alleged amount of loan, a slender doubt might have arisen, but, in the present matter, the total amount of 7 cheques is lesser than the amount of loan. Significantly, the specific amount of loan (to the tune of Rs. 22,50,000/-) was distinctly stated by the accused-appellant in the aforesaid acknowledgment dated 21.03.2017." 22. In the case at hand, accused has not been able to rebut the statutory presumption under Ss.118 and 139 of the Act in favour of holder of cheque i.e. complainant and as such, there appears to be no illegality or infirmity in the judgments/order of conviction and sentence passed by learned Courts below. All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to interfere with the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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