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TMI Blog2022 (11) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... committed patent error in accepting the so-called evidence of the respondent as rebuttal evidence, to rebut presumption under Section 139 of the Negotiable Instruments Act? 5. In a nutshell, the facts leading to the present proceedings are as under. 6. The appellant claimed that her deceased husband advanced friendly loan to the respondent to the tune of Rs.7,00,000/- by issuing a demand draft, in presence of PW2. In discharge of such loan, respondent no.1 issued cheque bearing No.669919 drawn on South Indian Bank, Porvorim branch amounting to Rs.7,00,000/- in favour of the appellant. On presentation of the said cheque, it was returned unpaid for funds insufficient. Legal notice was issued by the appellant demanding amount of cheque, which was received by respondent no.1. A complaint under Section 138 of Negotiable Instruments Act was filed before the learned Magistrate at Mapusa. On issuance of process, respondent no.1 appeared and contested the matter. On completion of trial, learned Magistrate though accepted that cheque bears signature of respondent no.1, observed that respondent no.1 succeeded in proving that there was no loan transaction between him and deceased husband of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve it. In absence of any such proof or evidence, the debt remained unpaid and, therefore, cheque issued by respondent no.1 in favour of the complainant has to be presumed as towards discharge of legal enforceable debt, which learned Magistrate failed to consider and thereby coming to erroneous findings. He finally submitted that observations of the learned trial Court are clearly perverse and against settled proposition of law and, therefore, this Court, in appeal, is required to interfere by setting aside the impugned order/judgment and thereby convicting respondent no.1 for the said offence. 9. Learned counsel Shri Pavithran relied upon the following decisions of the apex Court:- (i) Rangapa v/s. Sri Mohan (2010) 11 SCC 441 (ii) Bir Singh v/s. Mukesh Kumar (2019) 4 SCC 197 10. Learned counsel Shri Galileo Teles appearing for respondent no.1 submitted that the scope of this Court in an appeal challenging acquittal is very limited and only on the parameters that the findings of the trail Court suffer from the vice of irrationality or considered to be perverse thereby ignoring or excluding relevant material or by taking into consideration irrelevant and inadmissible material. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " to emphasize 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 conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 16. Keeping in mind the above settled legal position in connection with appeal under Section 178 of Cr.P.C., evidence in the matter needs to be reviewed/re-appreciated and reconsidered. 17. In the case of Kalamani Tex And Anr. V/s. V.P. Balasubramanian (2021) 5 SCC 283, the Supreme Court observed in paragraph 11 that the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents Act where it provides a criminal liability. Till expiry of such period, it is only a civil liability. Thus, the very purpose of issuing notice is to give opportunity to the drawer of the cheque either to arrange the payment within a period of 15 days from the date of receipt of notice and to intimate the payee or the holder of the cheque in due course or to raise his probable defence that he is not liable to pay such amount. 20. Keeping in mind above provisions and the purpose of issuance of notice, failure on the part of drawer to comply with the said notice on either way must be considered strictly as such failure is going to affect the drawer in the matter filed under Section 138 of Negotiable Instruments Act. It is so because, Section 138 of Negotiable Instruments Act draws a presumption in favour of the payee or the holder in due course that such cheque was issued for the discharge in whole or in part of any debt or other liability, unless contrary is proved. Such presumption is necessarily to be drawn once it is found that the cheque is issued by the drawer. The words "unless contrary is proved" comes into play only during trial and not at the stage of pre-trial proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebt 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly a human right as contended on behalf of the respondent-accused, relying on the judgments of this Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294 and Rajesh Ranjan Yadav v. CBI [Rajesh Ranjan Yadav v. CBI, (2007) 1 SCC 70. However the guilt may be established by recourse to presumptions in law and presumptions in facts, as observed above.' '22. In Laxmi Dyechem v. State of Gujarat [Laxmi Dyechem v. State of Gujarat, (2012) 13 SCC 375, this Court reiterated that in view of Section 139, it has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption. This Court held "however, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act".' 25. In Kalamani Tex (supra), the Supreme Court (3 Judges Bench) observed in paragraph 15 as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof.' '28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, 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 that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.' '29. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oses that she was specifically asked as to whether she knows that the accused repaid the said loan of Rs.7,00,000/- during the lifetime of her late husband, who expired somewhere in the year 2012. Thus, by asking the witness as to whether she knew about repayment, clear inference needs to be drawn that first of all the accused admits of obtaining loan of Rs.7,00,000/- from her husband and that he claims to have paid such amount in cash. The latter part that accused paid the said amount of Rs.7,00,000/- in cash is required to be established by the accused himself. It needs to be noted that no such defence was ever raised when accused received legal notice. It is for the first time that such aspect was brought on record during the course of examination of the complainant. Therefore, the presumption under Section 139 of Negotiable Instruments Act in favour of complainant gets more strength and the accused was required to rebut with plausible material and not by mere probability. 32. The reasoning of the learned trial Court are totally tangent to the presumptive value of section 139 of Negotiable Instruments Act. There is no observation in the entire judgment that the complainant is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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