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TMI Blog2025 (5) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter. 6. The exposition of facts, giving rise to this revision petition, is as under : - (A) Ravi Verma had filed a written complaint under Section 138 of the Negotiable Instrument Act inter-alia stating that the accused Devkaran is his close acquaintance. He had advanced loan of Rs.4,50,000/- to the accused for his family needs. Accused had taken loan for a period of four months. The accused had executed a notarized agreement dated 07.11.2017 promising to pay the loan amount and issued cheque no.070902 of Rs.4,50,000/- in presence of Manoj Carpenter and Mangilal. He presented the cheque at UCO Bank Dewas, but the cheque was returned with dishonour memo dated 09.03.2018 with remark of "insufficient fund". He issued statutory notice demanding the amount of cheque on 13.03.2018. The notice was served on the accused on 16.03.2018. The accused did not respond to the notice and failed to pay the amount of cheque within fifteen days, therefore, complaint for offence punishable under Section 138 of the Negotiable Instrument Act was filed before the Court of Judicial Magistrate First Class, Dewas. (B) Learned Judicial Magistrate First Class, Dewas on completion of trial, convict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of Madras High Court in case of Ramkumar Vs. Chelladurai reported in 2022 (1) MadWN (Cri) 28 and the judgment of Supreme Court in the case of Anss Rajashekar Vs. Augustus Jeba Ananth reported in 2019 INSC 59 contended that the existence of legally recoverable debt or liability need to be proved by the complainant for making out offence punishable under Section 138 of the Negotiable Instrument Act. 9. Per Contra learned counsel for the respondent submitted that the accused had admitted his signature on the cheque in question as well as on the agreement substantiating the issuance of cheque. The accused has failed to rebut legal presumption with regard to existence of legally recoverable debt or liability. The defense of the accused was duly considered by the trial Court and the first Appellate Court. Both the Courts have rightly convicted the accused. Therefore, the revision petition is meritless. 10. Heard learned counsel for both the parties and perused the record. 11. Under Section 397 of the Cr.P.C, the Court is vested with the power to call for and examine the record of any inferior Court for the purpose of satisfying itself as to legality and regularity of any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred for consideration; (b) as to date : that every negotiable instrument bearing a date was made or drawn on such date;" 14. Section 139 of the Act, 1881 provides for presumption in favour of holder as under- Presumption in favour of holder.- 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." 15. The Supreme Court Bharat Barrel & Drum Mfg. Co. Vs. Amin Chand Payrelal, (1999) 3 SCC 35, held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. It was observed that- " 12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact 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 may adduce direct evidence to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Sections 118(a) and 139 of the Act, as under- 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence. 19. The evidence on record and the correctness of impugned Judgement is examined in light of af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry evidence to establish availability of the amount said to be advanced as loan to the accused. The accused has failed to establish his defense even on preponderance of probability, therefore, there was no occasion to shift the onus of proof on the complainant to establish existence of legally recoverable debt or liability. The evidence of complainant Ravi(PW1) remained unrebutted regarding advancement of loan to the accused and issuance of cheque by the accused to repay the loan. Therefore, considering the statutory presumption in favour of the holder of cheque, absence of documentary evidence to establish financial capacity of the complainant is immaterial. 23. In view of above discussion, in the considered opinion of this Court, no patent illegality, perversity or impropriety is made out in the concurrent finding of conviction by the learned trial Court and the first Appellate Court. The sentence imposed by the trial Court and affirmed by the first Appellate Court is proper and appropriate. Consequently, no interference in concurrent finding of conviction of the petitioner/accused for offence punishable under Section 138 of the Negotiable Instrument Act and the sentence imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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