TMI Blog2022 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... a settled proposition of law that presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from a presumption of fact, such a presumption is a rebuttable presumption and the drawer of the cheque may dispel the same. The law is thus well settled that in order to rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the instrument in question was not supported by consideration and that there was no debt or liability to be discharged by him. The Court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated - To disprove the presumption, an 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 that their non-existence was so probable that a prudent man, would under the circumstances of the case, act upon the ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question was advanced for a period of one year to enable her to repair her house and the respondent is stated to have promised to return the said amount on or before August 2017. ii) An agreement is also stated to be executed in this regard, whereby, the accused-respondent admitted to having received the loan of ₹ 2,40,000/- as aforesaid. iii) When the appellant-complainant approached respondent-accused for repayment of the same, the respondent issued cheque No.150422 dated 05.08.2017 from her bank account with Allahabad Bank. The said cheque was however returned by the bank with memo dated 09.08.2017 with remarks 'insufficient funds'. iv) The appellant, thereafter, sent a legal notice raising a demand for the amount, however, upon failure on the part of the respondent to pay the amount despite demand, the complaint was instituted under Section 138 of Negotiable Instruments Act. v) The appellant appeared as CW-1 and did not lead any further evidence. No evidence was also led by the accused-respondent apart from cross-examination of the appellant. vi) Upon consideration of the same, the Chief Judicial Magistrate, Tarn Taran held that the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque was filled up in handwriting other than that of the drawer of the cheque; is not any proof of the fact that the consent of the drawer; in drawing such a cheque; was missing. If this is permitted then the drawer of the cheque can frustrate the provisions of Negotiable Instruments Act in; virtually; every case. He can get the cheque prepared as per his choice from some other person and can subsequently start pleading that he had not filled up the body of the cheque or that he had not consented to the filling of the body of the cheque. In such a situation, the payee or the holder in due course would have no means to prove his consent. Otherwise also, since the cheque is not a document which is required to be attested by witnesses for being a valid document, therefore, the complainant is under no legal obligation to examine a witness to prove the due execution of the same. On the contrary, if the drawer of the cheque takes a plea that his consent qua drawing of the cheque was missing, then it is, exclusively; for the drawer to prove the fact that he had not consented to the filling of the body of the cheque. 4. Reliance was further placed upon the judgment of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad given a cheque to one Priya as a payment to the saving scheme called committee. I did not borrow any money from the complainant present in the Court nor did I issued any cheque to the complainant present in the Court. I had not monitory transaction with the complainant. I have no legally enforceable debt towards the complainant. The complaint is false and based upon false facts' 7. The relevant extract of the cross-examination of the respondent/complainant reads thus:- xxxxxxxxx. It was 28,06.2016 when the agreement he accused to Priya Kapoor after signing the same and it was a blank cheque. Xxxxxxxxxxx. It is correct that I withdrawn the amount of ₹ 2,50,000/- on 13.06.2016, Rs, 1,30,000/- on 14,06.2016 and ₹ 1,30,000/- on 15.06.2016 and ₹ 2,00,000/- on 24.06.2016 from my savings account. It is wrong to suggest that accused was having committee with Priya Kapoor and accused had handed over blank security cheque for the same to Priya Kapoor, which has been misused by me, in connivance with said Priya Kapoor. It is wrong to suggest that no amount was taken by the accused form me nor she is liable to pay any amount to me. Xxxxxxxxxxx. 8. It is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The complainant has also referred to an agreement in hiscomplaint and has placed the same on record as Ex.C6 during preliminary examination but did not prove the same in accordance with law by summoning the attesting witnesses thereof. Since the document Ex.C6 is not proved in accordance with law, therefore, the same provides o help to the complainant 5. The complainant claims to have family relationship with theaccused and claimed in his cross-examination that the accused is doing the government job in Government Senior Secondary School (Boys), Tarn Taran. However, on the Service record being summoned by the accused from the said school, it was reported by the school authorities that no such person, namely, Raj Kaur wife of Sukchain Singh, has worked with the School, Even the complainant, who has claimed in the complaint to have close family relations with the accused, has failed to divulge the details of the children of the accused. 6. The complainant has not brought on record his income taxreturn for the concerned period, even when he has specifically mentioned himself to be businessman and must have filed income tax returns. 7. Last but not the least, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides 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 . The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 22. Because both Sections 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61 , it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which might reasonably be true and which is consistent with the innocence of the accused. On the other hand in the case of a mandatory presumption the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted...... [See also V.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) may presume (rebuttable), (2) shall presume (rebuttable) and (3) conclusive presumptions (irrebuttable). The term `presumption' is used to designate an inference, affirmative or disaffirmative of the existence a fact, conveniently called the presumed fact drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means taking as true without examination or proof . 16. Section 4 of the Evidence Act inter-alia defines the words `may presume' and `shall presume as follows: (a) `may presume' - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it. (b) `shall pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court 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 ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration and existence of debt would not serve the purpose of the accused. To disprove the presumption, an 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 that 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. 16. In the mater of Rangappa Vs. Sri Mohan (2010) 11 SCC 441, the Hon'ble Supreme Court observed on the matter of presumption cast under Section 139 of the Negotiable Instruments Act and held as under:- '26. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused was bound to make payment as had been agreed while issuing cheque in favour of the complainant. Taking note of the fact that the complainant was not aware of the date when the substantial amount was advanced by him to the accused and his failure to produce relevant documents in support of the alleged source for advancing money to an accused, the judgment convicting the accused was set aside by holding the same to be perverse. The relevant facts noticed from the aforesaid judgment are extracted as under:- '6. When we examine the case of the respondent-complainant as projected before the learned Chief Judicial Magistrate and the material evidence placed before the trial Court, we find that the trial Court had noted certain vital defects in the case of the respondent-complainant. Such defects noted by the learned Chief Judicial Magistrate were as under: a) Though the respondent as PW-1 deposed that the accused received the money at his house also stated that he did not remember the date when the said sum of ₹ 1,50,000/- was paid to him. b) As regards the source for advancing the sum of₹ 1,50,000/-, the respondent claimed that the same was from and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pposite stand that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. 11. We find that the various defects in the evidence of respondent, as noted by the trial Court, which we have set out in paragraph 7 of the judgment, were simply brushed aside by the High Court without assigning any valid reason. Such a serious lacuna in the evidence of the complainant, which strikes at the root of a complaint under Section 138, having been noted by the learned trial Judge, which factor was failed to be examined by the High Court while reversing the judgment of the trial Court, in our considered opinion would vitiate the ultimate conclusion reached by it. In effect, the conclusion of the learned Judge of the High Court would amount to a perverse one and, therefore, the said judgment of the High Court cannot be sustained.' (Emphasis supplied) 18. In the matter of Basalingappa Vs. Mudibasappa (2019) 5 SCC 418, while dealing with the standard of proof and the presumption drawn under the Negotiable Instruments Act, the Hon'ble Supreme Court has observed as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. 16. This Court held that what is needed is to raise a probable defence, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon. Dealing with standard of proof, following was observed in paragraph No.32:- 32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. 17. In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde,(2008) 4 SCC 54 , this Court held that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. Following was laid down in Paragraph No.32:- 32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion was put that cheque was issued in relation to loan of ₹ 25,000/- taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of ₹ 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of ₹ 4,50,000/- to Balana Gouda towards sale consideration. Payment of ₹ 4,50,000/- being admitted in the year 2010 and further payment of loan of ₹ 50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of ₹ 18 lakhs. During his cross-examination, when financial capacity to pay ₹ 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in-dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence. Sometimes, the width- of the power is emphasized, while on other occasions, the necessity to adopt a cautious approach in dealing with appeals against acquittals is emphasised, and the emphasis is expressed in different words or phrases used from time to time. But the true legal position is that however circumspect and cautious the approach of the High Court may be in dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecution in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reason-able doubt, and that the contrary view taken by the trial Court was, erroneous. In answering this question, we would, no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court. But under Article 136 we would ordinarily be reluctant to interfere with the finding of fact recorded by the High Court particularly where the said findings are based on appreciation of oral evidence. 21. Further, the Hon'ble Supreme Court has held in the matter of Nagbhushan vs. State of Karnataka, (2021) 5 SCC 212, as under: 7.2 Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered. 7.2.1 In the case of Babu v. State of Kerala (2010) 9 SCC 189, this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755) 15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight and consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. A similar view has been reiterated by this Court in Dhanpal v. State (2009) 10 SCC 401. 19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (emphasis supplied) 7.2.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: 20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case. 31.1 In Sambasivan v. State of Karala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) 8. We have perused the judgment under appeal to ascertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley v. State of U.P. AIR 1955 SC 807 , in para 5, this Court observed and held as under: (AIR pp. 809-10) 5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith criminal appeals are equally wide whether the appeals are against conviction or acquittal. b) In dealing with appeal against acquittal, the High Court bears in mind that the presumption of innocence is strengthened. c) As an appellate Court, the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. d) That the interference of the High Court in an appeal against the order of acquittal would be justified only if there are very substantial and compelling reasons to do so . e) The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, even though the view of the appellate court may be the more probable one. f) Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtail the extensive powers of an appellate court in an appeal against a ..... 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