TMI Blog2020 (5) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal No.715/2009 - - - Dated:- 27-2-2020 - Justice Anand Pathak, J. For the Appellant : Shri D.S. Raghuvanshi and Shri V.K. Jha, learned counsel For the Respondent No. 1 : None For the Respondent No. 2 : Shri Sushant Tiwari, learned counsel JUDGMENT 1. The present appeal under Section 374 of the Code of Criminal Procedure, 1973 against the order dated 18-08-2009 whereby the trial Court -Judicial Magistrate First Class, Shivpuri has dismissed the complaint because cheque was issued as security to the complainant. 2. The core submission of learned counsel for the appellant is that the trial Court erred in not convicting the respondent and dismissing the complaint merely on the ground that the cheque in question was issued under the capacity of security and security it not legally recoverable debt or liability. He relied upon the judgment of the Apex Court in the case of Rangappa v. Mohan reported in 2010 AIR SCW 2946 to submit that existence of legally recoverable debt is a matter of presumption under Section 139 and accused has to raise a probable defence which may create doubts about existence of legally enforceable debt or liability, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption is rebuttable. However, the burden of proving that the cheque has not been issued for a debt or liability is on the accused. 6.2 In the case of Rangappa (supra) again, this Court had an occasion to consider the presumption of existence of a legally enforceable debt or liability under Section 139 of the N.I. Act. In the aforesaid decision, after considering other decisions of this Court on Section 118(a) and 139 of N.I. Act, it is observed and held that there exists a presumption which favours the complainant. It is further observed that the presumption under Section 139 of the N.I. Act is in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein there is existence of legally enforceable debt or liability can be contested. In Paragraph 27 this Court observed and has held as under: 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase until the contrary is proved in Section 118 of the Act and use of the words unless the contrary is proved in Section 139 of the Act read with definitions of may presume and shall presume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the N.I. Act. It appears that both, the Learned Trial Court as well as the High Court, have committed error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139 of N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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