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TMI Blog2019 (10) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant. 2. Precisely, the facts of the case as emerge from the record are that the respondent (hereinafter referred to as the 'complainant') instituted a complaint under Section 138 of the Negotiable Instrument Act ( for short 'Act') in the Court of learned Judicial Magistrate, 1st Class, Baijnath, District Kangra, H.P., alleging therein that she leased out a Hotel in favour of the accused on a monthly rent of Rs. 60,800/and accused with a view to discharge his aforesaid liability, issued cheque No.309879, dated 10.3.2010, amounting to Rs. 60,800/. However, fact remains that aforesaid cheque was dishonoured on account of "insufficient funds" in the account of the accused. Immediately after receipt of the memo from the bank concerned, complainant served accused with statutory demand notice calling upon him to make the payment good within the period prescribed in the legal notice, but since accused failed to make good the payment within stipulated period, complainant was compelled to initiate proceedings under Section 138 of the Act. 3. Learned trial Court on the basis of the totality of evidence adduced on record by the respective parties, held accused guilty of having committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant to institute the complaint under Section 138 of the Act. 8. CW3, Veena Langa (complainant) while deposing before the Court below has successfully proved the contents of the complaint by stating that she has given Hotel Shankar View on lease to the accused, who is running this Hotel named as DTIL. She further stated that rent to the tune of Rs. 60,800/per month was agreed between the parties excluding TDS, but accused has failed to pay the rent since the building was taken on rent by him. She further stated that cheque Ex.CW1/A amounting to Rs. 60,800/was handed over to her by the accused on 10.3.2010 with a view to discharge his liability towards rent, but fact remains that said cheque on its presentation was dishonoured vide memos Ex.CW1/B & C. Immediately after receipt of aforesaid memos, she served demand notice through her counsel, which is Ex.CW1/D, postal receipt Ex.CW1/E and acknowledgment Ex.CW1/F. She also placed on record memorandum issued by the bank Ex.CW1/C and the receipt pertaining to the deposit of cheque in question Ex.CW1/B. She also admitted that she has filed three cases against the accused. In her cross-examination, she specifically denied the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er se parties with regard to leasing out of the property in question and amount of rent settled inter se them. Similarly, there is no dispute with regard to issuance of cheque and signatures of the accused thereupon, rather accused in his statement recorded under Section 313 Cr.P.C., has categorically admitted the factum with regard to issuance of cheque as well as his signature. Accused made an attempt to carve out a case that cheque in question Ex. CW1/A was not towards rent, but same was issued as a security. Since, there is no dispute with regard to signatures of the accused on the cheque, there is presumption under Sections 118 and 139 of the Act in favour of the complainant being holder of cheque that the cheque was issued by the accused in favour of complainant in discharge of legally enforceable debt/liability. Onus is/was upon the accused to rebut the aforesaid presumption. 13. In the case at hand, accused with a view to rebut aforesaid presumption examined DW1, Sunny, who though stated that since 2005 rent of the hospital is being paid by the accused regularly, but he was unable to produce any receipt. Though, this witness categorically claimed that receipt obtained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque that the cheque has been given in discharge of legally enforceable debt or liability. 17. True, it is that presumption, as referred above, is rebuttable and to rebut such presumption accused can always raise probable defence either by leading positive evidence or by referring to material if any, adduced on record, 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 Section 118 and 139 of the Act. In the case at hand, issuance of cheque as well as signatures thereupon of the accused are clearly admitted. Though, witness examined in defence by the accused claimed that entire rent was paid in cash, but he despite having categorically said that he is in possession of the receipt failed to place the same on record. At this stage, reliance is placed upon a judgment rendered by Hon'ble Apex Court in Hiten P. Dalal v. Bartender Nath Bannerji, (2001) 6 SCC 16, wherein it has been held as under: "The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduly 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 qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused." 21. In the case at hand, accused has been not able to rebut the statutory presumptions under Section 118 and 139 of the Act in favour of the holder of the 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 the 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 judgments/order of conviction and sentence recorded by learned Courts below, as such, same deserve to be upheld. 22. In view of above, the petition at hand is dismissed being devoid of merit. Judgments passed by learned Courts below are upheld. Accused is directed to surrender before the learned trial Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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