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TMI Blog2018 (8) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... t enter into the witness box to adduce any direct evidence to dispute the case sought to be made out by the appellant before the trial Court. It is clear that the appellant was able to prove its case beyond reasonable doubt against the respondent and that the trial Court committed an error in acquitting the respondent. - the respondent is convicted for offfence punishable under Section 138 of the aforesaid Act. - Criminal Appeal No.290 of 2017 - - - Dated:- 13-7-2018 - MANISH PITALE, J. Mr. M.R. Joharapurkar, Advocate for Appellant. Mr. Shashikant Borkar, Advocate (Appointed) for Respondent ORAL JUDGMENT 1. By this appeal, the appellant (original complainant) has challenged judgment and order dated 19.06.2015 passed by the Court of Judicial Magistrate First Class, Nagpur (trial Court) in Summary Criminal Case no.12999 of 2013, whereby the respondent (original accused) has been acquitted by the trial Court for offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. The case of the appellant was that he was a super stockist of Pharmaceutical and Cosmetic items of various companies and that the respondent used to purchase certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant had failed to place on record documents pertaining to payment of octroi on the items sold, which also indicated that the defence of the respondent was probable. On this basis, the trial Court found that although presumption may have arisen against the respondent, he had been able to rebut the same on preponderance of probabilities. Accordingly, the trial Court acquitted the respondent by the impugned judgment and order. 6. Mr. M.R. Joharapurkar, learned counsel appearing on behalf of the appellant, submitted that in the present case the respondent had failed to place on record any direct evidence in support of his defence, although it was stated in his statement recorded under Section 313 of the Code of Criminal Procedure that the cheque in question had been issued by way of security. It was further submitted that a perusal of the cross-examination of the witness of the appellant would show that the material that came on record supported the case of the appellant and not the defence of the respondent. It was submitted that the presumption under Sections 118 and 139 of the aforesaid Act operated against the respondent and that he had failed to bring on record any material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant 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 def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue. 11. The impugned judgment and order passed by the Trial Court needs to be examined in the light of the proposition of law laid down by the Hon'ble Supreme Court in the judgments quoted above. The trial Court has held in favour of the respondent on the basis, firstly, that while it was the case of the appellant that it had sold cosmetic items to the respondent for which the cheque in question was issued, a perusal of the bills pertaining to sale of items at Exhs. 19, 20 and 21 demonstrated that the items were not cosmetic items, but they were electrical items. Secondly, the trial Court has held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its complaint that the appellant used to sell cosmetic items to the respondent, the bills in question at Exhs. 19, 20 and 21 pertained to electrical items. This was nothing but hairsplitting and an approach which completely ignored the existence of the material on record showing transactions between the appellant and the respondent. In the cross-examination of the witness who appeared in support of the complaint, there was no material to show that the case of the appellant was discredited in any manner. The emphasis of the trial Court on the proof of payment of octroi not being brought on record by the appellant, was also wholly misplaced because even as per the few documents brought on record by the respondent, proof of payment of octroi would necessarily have been in the custody of the respondent. Therefore, the trial Court erred in drawing an adverse inference against the appellant on the ground that proof of payment of octroi was not brought on record. 14. Therefore, the respondent could not rely upon the material on record, particularly the cross-examination of the witness of the appellant, to claim that he had rebutted the presumption on preponderance of probabilities. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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