TMI Blog2021 (12) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... egards the existence of a legal liability in terms of Section 139 of the Act particularly when there is nothing on record to rebut the same. There is a mandate of presumption of existence of liability and upon proof of issuance of cheque the onus shifts to the accused/petitioner to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the Act. In the instant case, the petitioner has only recorded his statement under Section 313 Cr.P.C. and has not adduced any evidence to rebut the presumption that the cheque was issued for consideration - Once the facts on record remained unrebutted with no substantive evidence of defence of the petitioner to explain the incriminating circumstances appearing in the complaint against him, no error can be said to have been committed by the Courts below. There is certainly no evidence to show that the body writing on the cheque in question is in a different hand or ink and has been made by a person other than the person, who had signed on the cheque. But, that as it may, even if there is any such difference in hand-writing, the same would be immaterial once the signatures on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... box as CW-1 and also led documentary evidence. The accused/petitioner in his statement recorded under Section 313 Cr.P.C. pleaded innocence and took a stand that he had never taken any loan from the complainant or her husband and that the cheque had been misused. No evidence was led by the accused/petitioner. 4. The trial Court upon considering the evidence led before it held the accused/petitioner guilty of having committed an offence punishable under Section 138 of the Act and sentenced him to undergo RI for one year and also directed him to pay compensation to the tune of ₹ 8 lakhs to the complainant alongwith interest at the rate of 6% w.e.f. 25.04.2014 vide judgment of conviction and order of sentence dated 18.05.2016. 5. The aforesaid judgment dated 18.05.2016 passed by the learned Additional Chief Judicial Magistrate, Panchkula, was challenged by the petitioner by filing an appeal before the Court of Sessions at Panchkula, but the same was dismissed vide impugned judgment dated 14.06.2019, which has been challenged before this Court by filing the instant criminal revision. 6. Learned counsel for the petitioner has submitted that the impugned judgments suffer f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther submitted that since the signatures on the cheque in question are not disputed by the petitioner, therefore, a presumption in terms of Section 139 of the Act can safely be drawn against him and in the absence of any evidence to rebut the same, the petitioner who had issued a cheque for repayment of the loan in question, which has been dishonoured, has rightly been found guilty by the trial Court and as upheld by the lower Appellate Court. 8. I have considered rival submissions addressed before this Court. 9. The petitioner in his statement recorded under Section 313 Cr.P.C. has denied having taken any loan from the complainant's husband. However, at the same time, he is not disputing his signatures on the cheque in question and has not even come out with any convincing explanation as to how the cheque in question came in the hands of the complainant. No doubt, it is correct that the complainant has not come out with any written document to establish the advancement of the loan in question, but it is not even the case of the petitioner that the amount had been paid by the complainant's husband to the petitioner on account of any other purpose or being due to be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that cheques were issued for consideration, but was only opportunity to accused to explain incriminating circumstances appearing in prosecution case and as such was no evidence to rebut presumption that cheques were issued for consideration. 12. Once the facts on record remained unrebutted with no substantive evidence of defence of the petitioner to explain the incriminating circumstances appearing in the complaint against him, no error can be said to have been committed by the Courts below. Hon'ble the Supreme Court in Sumeti Vij's case (supra) also while discussing the quality of proof required to establish an offence under section 138 of the Act held as follows: 16. It is well settled that the proceedings under Section 138 of the Act are quasi-criminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the Act. 17 to 21 x x x 22. The judgment on which learned counsel for the appellant has placed reliance i.e. K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258 may not be of any assistance for the reason that in the case dealing under Section 138 of the Act, the prosecution has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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