2019 (5) TMI 966 - HC - Indian Laws

Dishonor of Cheque - Section 138 of the Negotiable Instruments Act - recovery of Loan - rebuttal of presumptions - HELD THAT - When once the first respondent establish the payment of money towards hand loan and issuance of cheque towards the said debt, the presumption under Section 139 of the Act is automatic. Now, it is for the petitioner to prove that no amount has been advanced and the subject cheque has not been issued by him. Therefore, the burden is on the petitioner to prove the same to probabalise the non-existence of consideration by preponderance of probabilities. Though the presumption under Section 118 and 139 of the Act is rebuttal, by way of preponderance of probabilities either through direct evidence or through the material brought on record, the petitioner failed to produce any evidence to rebut the said presumption. Mere denial of existence of debt is not sufficient to rebut the presumption. Further, the petitioner miserably failed to explain the circumstances under which Ex.P-2 was issued to the first respondent. That apart, there is no evidence as to how the promissory note (Ex.P-1) and the subject cheque (Ex.P2) went into the custody of the first respondent. When once the advancement of the amount and the issuance of Exs P-1 and P-2, are not proved, this Court is of the opinion that the petitioner miserably failed to rebut the presumption as drawn under Sections 118 and 139 of the Act. There are no merits in the revision case - revision dismissed.

Issues:
1. Conviction under Section 138 of the Negotiable Instruments Act.
2. Failure to prove payment of amount under the cheque.
3. Burden of proof on the petitioner to establish non-existence of consideration.
4. Rebutting the presumption under Section 118 and 139 of the Act.
5. Lack of evidence to explain the circumstances of issuing the cheque.
6. Failure to produce evidence to rebut the presumption.

Analysis:

1. The petitioner was convicted under Section 138 of the Negotiable Instruments Act based on a complaint filed by the first respondent for dishonoring a cheque issued in lieu of a hand loan. The lower courts upheld the conviction, leading to the petitioner filing a revision against the judgments.

2. The petitioner contended that the first respondent failed to prove the payment of the amount under the cheque, arguing that there was no legally enforceable debt due to the absence of evidence showing the payment. The petitioner challenged the presumption drawn under Section 139 of the Act.

3. The burden of proof was on the petitioner to establish the non-existence of consideration for the cheque issued. The first respondent claimed to have advanced a sum of ?2 lakhs as a hand loan, supported by a promissory note and the dishonored cheque. The petitioner's failure to provide evidence to counter this claim weakened his case.

4. The presumption under Sections 118 and 139 of the Act is rebuttable through preponderance of probabilities. However, the petitioner failed to produce any evidence to challenge this presumption, as mere denial of debt's existence was deemed insufficient. The lack of explanation on how the cheque and promissory note came into the first respondent's possession further weakened the petitioner's stance.

5. The court noted the absence of evidence regarding the circumstances surrounding the issuance of the cheque, indicating a lack of diligence on the petitioner's part to clarify the transaction details. This lack of clarity contributed to the court's decision to dismiss the revision case.

6. Ultimately, the court found no merit in the revision case due to the petitioner's failure to rebut the presumptions under the Act. The dismissal of the revision affirmed the lower courts' judgments, highlighting the importance of providing substantial evidence to challenge legal presumptions in such cases.

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