TMI Blog2019 (11) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... acking material or the rate to determine the total liability as if the appellant was proving his debt before the Civil Court - Therefore, it is presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the appellant received the same in discharge of an existing debt. The onus, thereafter, shifts on the accused-appellant to establish a probable defence so as to rebut such a presumption, which onus has not been discharged by the respondent. The respondent is held guilty of dishonour of cheque for an offence under Section 138 of the Act. The respondent shall pay ₹ 10,77,712/- as fine i.e. twice of the amount of cheque of ₹ 5,38,856/- and a cost of litigation of ₹ 1,00,000/- within three months - Appeal allowed. - CRIMINAL APPEAL NO. 1545 OF 2019 (ARISING OUT OF SLP (CRL) NO. 3452 OF 2019) - - - Dated:- 17-10-2019 - MR L. NAGESWARA RAO AND MR HEMANT GUPTA, JJ. For The Appellant (s) : Mr. B. S. Banthia, AOR, Mr. Sachin Daga, Adv. And Mr. Rajesh Kandari, Adv. For The Respondent (s) : Mr. Samir Ali Khan, AOR JUDGMENT HEMANT GUPTA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Dhiraj Kumar who produced the bank record of dishonour of cheque, the appellant examined himself as CW2 and also produced Prem Chand son of Kumat Ram, the agent of respondent as CW3. The respondent did not appear in witness box but examined Head Constable Ranjit Singh DW1. 8. Learned Trial Court dismissed the complaint for the reason that cheque amount was more than the amount alleged on the due date when cheque was presented. Therefore, the cheque cannot be said to be drawn towards discharge of whole or in part of any debt. 9. The appellant in his affidavit reiterated his assertions as were given in the complaint. In the cross-examination conducted by the respondent, the appellant stated that cheque in Exh.CW1/B was filled up by the respondent in October 2011 and that cheque was given by the respondent himself to him. Three persons, he himself, accused and the agent of the respondent sat together. He deposed that he was given up a filled-up cheque. He denied the suggestion that the accused did not issue the cheque Exh.CW1/B. He also denied the suggestion that Prem Chand misused the cheque of the accused because he has stolen the signed cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable doubt that the cheque Ext. CW1/B was issued by the accused in favour of the complainant. Further, the dishonor of the cheque has also been proved through return memo Ext. CW1/C. Further the legal demand notice was also issued within a period of 30 days from the date of dishnour. Thereafter, the present complaint has been filled within the period of limitation. 14. Still further, the learned Trial Court held the presumption that the amount of cheque is legally enforceable debt, has not been rebutted when the following finding was returned: . Neither any meaningful cross-examination of the complainant has been done on this point of his financial capacity. Accordingly, the aforesaid presumption has not been rebutted by the accused by proving that the complainant did not have the requisite financial capacity. Accordingly, the said defence is rejected. 15. However, the learned Trial Court found contradiction in the number of cartons in the complaint as well as in the statement of the appellant. It was found that the cheque amount is more than the amount allegedly due on the date when cheque was presented, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; . xxx xxx xxx 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 other liability. 20. The Trial Court and the High Court proceeded as if, the appellant is to prove a debt before civil court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability. 21. There is the mandate of presumption o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. ( emphasis supplied) 23. In a judgment reported as Kishan Rao v. Shankargouda ( 2018) 8 SCC 165 , this Court referring to Kumar Exports and Rangappa returned the following findings: 22. Another judgment which needs to be looked into is Ranga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2019) 4 SCC 197 , this Court held that presumption under Section 139 of the Act is a presumption of law. The Court held as under: 20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC (Cri) 960] . xxx xxx xxx 33. A meaningful reading of the provisions of the Negotiable Instruments Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx 20. On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under Section 118 and 139 of the NI Act .. xxx xxx xxx 32. The result of discussion in the foregoing paragraphs is that the major considerations on which the Trial Court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances appearing in the prosecution case of accused. Therefore, there is no evidence to rebut the presumption that the cheque was issued for consideration. 27. Once the agent of the respondent has admitted the settlement of due amount and in absence of any other evidence the Trial Court or the High Court could not dismiss the complaint only on account of discrepancies in the determination of the amount due or oral evidence in the amount due when the written document crystalizes the amount due for which the cheque was issued. 28. The accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and the High Court. Both Courts not only erred in law but also committed perversity when the due amount is said to be disputed only on account of discrepancy in the cartons, packing material or the rate to determine the total liability as if the appellant was proving his debt before the Civil Court. Therefore, it is presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the appellant received the same in discharge of an existing debt. The onus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any merit in the arguments raised by the learned counsel for the respondent. In fact, the findings recorded by the courts below are total misreading of the statutory provisions more so when the respondent has not led any evidence to rebut the presumption of consideration. Crossexamination on the prosecution witness is not sufficient to rebut the presumption of consideration. Mere discrepancies in the statement in respect of the cartons, trays or the packing material or the rate charged will not rebut the statutory presumption which is proved by CW3 Prem Chand. 33. The conclusion drawn by the Trial Court and the High Court to acquit the respondent is not only illegal but being perverse is totally unsustainable in law. Before concluding, we would like to put on record that Ms. Mathew has ably assisted this Court in canvassing that the order passed by the High Court does not warrant any interference in the present appeal against acquittal. 34. Consequently, the present appeal is allowed, order passed by the High Court is set aside. The respondent is held guilty of dishonour of cheque for an offence under Section 138 of the Act. The respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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