9911796707
TMI Blog2008 (12) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent that the appellant purchased handtufted woolen carpets from him on August 6, 1994, cost of which was Rs.1,90,348.39. According to the respondent, the appellant issued two cheques, i.e., one cheque bearing No. 052912 dated August 25, 1994 for a sum of Rs.1,00,000/- and another cheque bearing No. 052913 dated September 25, 1994 for an amount of Rs.90,348.39 drawn on Panipat branch of Union Bank of India, for discharge of his liability. The case of the respondent is that the cheques were deposited in the bank by him for encashment, but those cheques were received back unpaid with remarks "insufficient funds". It is the case of the respondent that the fact that the cheques were dishonoured for insufficient funds was brought to the notice of the appellant and on the request of the appellant, the cheques were again presented for encashment in the bank on January 5, 1995, but they were again dishonoured due to lack of funds in the account of the firm of the appellant. What is claimed by the respondent is that under the circumstances he had served statutory notice dated January 19, 1995 calling upon the appellant to make payment of the amount due but neither the appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex. CW-2/C did not bear the signature of the appellant as buyer to acknowledge its acceptance or correctness. The learned Magistrate also noted that no corroborative evidence in the form of account books was produced by the respondent and it was, therefore, doubtful whether in fact the respondent had delivered any goods to the appellant. The learned Magistrate referred to the testimony of witness from the Sales Tax Department and concluded that as no transaction of sale of woolen carpets was effected by the respondent during the Assessment Year 1994-95, the defence pleaded by the appellant was probablised. In view of abovementioned conclusions, the learned Magistrate acquitted the appellant by judgment dated December 6, 2003. 7. Feeling aggrieved, the respondent preferred Criminal Appeal No. 946 SBA of 2004 in the High Court of Punjab and Haryana at Chandigarh. The learned Single Judge, who heard the appeal, was of the opinion that in terms of Section 139 of the Act there was a presumption that the cheques received by the respondent were for the discharge of a debt or liability incurred by the appellant that execution of cheques was admitted by the appellant and that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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". 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the bill. The bill is neither signed by the appellant. On the contrary, the appellant examined one official from the Sales Tax Department, who positively asserted before the Court that the respondent had filed sales tax return for the Assessment Year 1994-95 indicating that no sale of woolen carpets had taken place during the said Assessment Year and, therefore, sales tax was not paid. The said witness also produced the affidavit sworn by the respondent indicating that during the year 1994-95 there was no sale of woolen carpets by the respondent. Though the complainant was given sufficient opportunity to cross-examine the said witness, nothing could be elicited during his cross-examination so as to create doubt about his assertion that no transaction of sale of woolen carpets was effected by the respondent during the year 1994-95. Once the testimony of the official of the Sales Tax Department is accepted, it becomes evident that no transaction of sale of woolen carpets had taken place between the respondent and the appellant, as alleged by the respondent. When sale of woolen carpets had not taken place, there was no existing debt in discharge of which, the appellant was expected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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