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TMI Blog2021 (12) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the facts of the case, as emerge from the record, are that the complainant instituted a complaint under S. 138 of the Act before learned trial Court, alleging therein that he had family relations with the accused, who approached him to meet financial crises. Complainant alleged that he advanced 1,50,00 to the accused on his request, who with a view to discharge his liability, issued cheque bearing No. 422260 dated 10.1.2016 amounting to Rs. 1,50,000/- of his account maintained by him in UCO Bank ARTRAC Shimla. However, the fact remains that the cheque (Exhibit CW-1//A), on its presentation, was dishonoured on account of insufficient funds. After having received return memo Exhibit CW-1/C from the Bank concerned, complainant served accused with legal notice Exhibit CW-1/D, calling upon him to make good the payment within the time stipulated in the legal notice but since the accused failed to make the payment within the time stipulated in legal notice, complainant was compelled to institute complaint under S. 138 of the Act. 3. Learned trial Court, on the basis of the pleadings and the evidence adduced on record by respective parties, held the accused guilty of having committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uance of cheque and signatures thereupon, presumption as available under Ss. 118 and 139 comes into play. Section 118 and 139 of the Act clearly provide that 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. True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant. 10. Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106, wherein, it has been held as under: "18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at varianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. Thereafter, on demanding the money by the complainant, the accused had given seven (7) cheques to the complainant in our presence but such cheques being washed out in rainy water and on informing me by the complainant I had informed to the accused. Thereafter, Rohitbhai had given other seven (7) cheques to the complainant in my presence and the deed was executed on Rs. 100/- stamp paper in there is my signature." 19.3 This witness was cross-examined on various aspects as regards the particulars in the writing on the stamp paper and the date and time of the transactions. In regard to the defence as put in the cross-examination, the witness stated as under: "I have got shop in National Plaza but in rain no water logging has taken place. It is not true that there had been no financial dealings between me and the accused today. It is not true that I had given rupees ten lacs to the accused Rohitbhai on temporary basis. It is not true that for the amount given to the accused, I had taken seven blank duly cheques also blank stamp paper without signature. It is not true that there was quarrel between me and the accused in the matter of payment of interest. It is not true that eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues of Corporation Bank, Alkapuri Branch bearing No. 763346 to 762252 amounting to Rs. 22,50,000/- (Rupees twenty two lacs fifty thousand only) Dates: (1) 01/4/08, (2) 01/05/08 (3) 01/07/08, (4) 01/08/08 (5) 01/10/08 (6) 01/11/08 (7) 01/12/08 the account of which is 40007. Earliest these cheques were given but due to rainy water logging the said cheques having been washed out (7) cheques have again been given which is acceptable to me." 19.6 The fact of the matter remains that the appellant could not deny his signatures on the said writing but attempted to suggest that his signatures were available on the blank stamp paper with Shri Jagdishbhai. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of Bank and account number are of the same cheques which form the subject matter of these complaint cases. The said document bears the date 21.03.2007 and the cheques were post-dated, starting from 01.04.2008 and ending at 01.12.2008. There appears absolutely no reason to discard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly 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 subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him that entire sum taken by him would be repaid within 2-4 days. This witness tendered in evidence cheque, Exts. CW-1/A, intimation CW-1/B, return memo CW-1/C, legal notice Ext. CW-1/D, postal receipt Ext. CW-1/E and RED envelop undelivered, Ext. CW-1/F. 13. During cross-examination, this witness stated that he had retired in the year 2017 from Police Station Sadar, Shimla. He further deposed that during his service, he received monthly salary of Rs. 20,000/- after all the deductions. He deposed that the accused approached him for money, when he was facing some penalty for his having retained the Government accommodation. This witness admitted that the house of accused is situate near Kali Bari Temple, Shimla. While admitting the suggestion that he has not cited his wife as witness, he feigned ignorance that the cheque has been filled in two different inks. This witness self-stated that the cheque was filled in by the accused himself. This witness denied the suggestion that he has misused the cheque. 14. If the entire statement made by complainant is read in its entirety, it clearly proves that the complainant has successfully proved that he advanced Rs. 1,50,000 to the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X
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