TMI Blog2020 (9) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. In the considered opinion of this Court, a mere denial of the averments made by the respondent is not sufficient for rebutting the presumptions arising in his favour and it is for the petitioner to demonstrate that there exists preponderance of probabilities that the cheque in question was not issued towards discharge of any legally enforceable debt/liability, but the petitioner has failed to do so. On the other hand, the respondent has proved his case that the petitioner committed the offence under Section 138 of the Negotiable Instruments Act - Hence, the trial Court has rightly convicted the petitioner for the same and the same was also affirmed by the Appellate Court. Criminal Revision Case stands dismissed. - Crl.R.C.No.549 of 2016 - - - Dated:- 27-2-2020 - THE HONOURABLE MR.JUSTICE R.MAHADEVAN For the Petitioner : Mr.A.R.Suresh For the Respondent : Mr.R.Karthikeyan ORDER The revision petitioner is the accused in S.T.C.No.5 of 2014 on the file of the learned Fast Track Court at Magisterial Level, Tiruvallur and he was convicted for an offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esented the said cheque for collection and the same was returned dishonoured due to insufficient funds. Thereafter, he issued a statutory notice on 14.05.2014. On receipt of the same, the petitioner sent a reply denying the allegations made therein. Stating that the petitioner has issued the cheque knowing fully well that there was no sufficient funds in his account to honour the same and failed to repay the amount borrowed and thereby committed the offence punishable under Section 138 of the Negotiable Instruments Act, the respondent has preferred the private complaint, which culminated in STC No.5 of 2014. To substantiate his case, he examined himself as PW1 and marked Exs.P1 to P5 documents. 6.In order to determine whether the offence punishable under Section 138 Negotiable Instruments Act, 1881 is made out against the petitioner/accused in the instant case, it would be necessary to first delve upon Sections 118 and 139 of the Negotiable Instruments Act, 1881 which deal with the subject of 'presumptions' that are to be raised in deciding the liability of the accused under Section 138 Negotiable Instruments Act. Section 118 of the Act deals with the presumption with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, 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 presu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond reasonable doubt. The Court observed: 29. 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 disproved. The words proved and disproved have been defined in Section 3 of the Evidence Act (the interpretation clause)... 30. Applying the said definitions of proved or disproved to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Xxxxxxxx 32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initially placed on the Defendant by virtue of Section 118 it can be rebutted by the Defendant by showing a preponderance of probabilities that such consideration as stated in the pronote, or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption 'disappears'. For the purpose of rebutting the initial evidential burden, the Defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the Plaintiff who has also the legal burden. 24. In Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] the Supreme Court compared evidentiary presumptions in favour of the prosecution with the presumption of innocence in the following terms: 22. ... Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been elicited from the cross examination of P.W.1. That apart, the petitioner has not subjected himself to witness box, which is fatal to his case. In the considered opinion of this Court, a mere denial of the averments made by the respondent is not sufficient for rebutting the presumptions arising in his favour and it is for the petitioner to demonstrate that there exists preponderance of probabilities that the cheque in question was not issued towards discharge of any legally enforceable debt/liability, but the petitioner has failed to do so. On the other hand, the respondent has proved his case that the petitioner committed the offence under Section 138 of the Negotiable Instruments Act. Hence, the trial Court has rightly convicted the petitioner for the same and the same was also affirmed by the Appellate Court. 11.This Court, thus, does not find any reason to upset the view so taken by the Courts below. 12.Accordingly, the Criminal Revision Case stands dismissed being devoid of merits. The trial Court is directed to secure the accused and commit him in prison to undergo the remaining period of sentence, if any. If any amount has been deposited by the accused either in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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