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TMI Blog2019 (4) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... ch circumstances, it cannot be said that the accused has discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant’s case that he had returned the money. This assumes importance because the petitioner had not denied the issuance of cheque. Revision petition dismissed. - Cr. Revision No. 431 of 2018. - - - Dated:- 8-4-2019 - Mr. Justice Tarlok Singh Chauhan, Judge. For the Petitioner : Mr. Naveen K. Bhardwaj, Advocate. For the Respondent : Nemo ORDER Tarlok Singh Chauhan, Judge (Oral) This Criminal Revision is directed against the judgment passed by learned Sessions Judge, Kullu on 31.10.2018 whereby he affirmed the judgment of conviction as passed by learned Judicial Magistrate 1st Class, Manali, District Kullu, sentencing and convicting the petitioner/accused (hereinafter referred to as the accused ) to undergo simple imprisonment for a period of seven months for the offence punishable under Section 138 of the Negotiable Instruments Act (for short Act ) and to pay a lumpsum compensation of ₹ 1,25,000/- to the respondent/ complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be set-aside and accused deserves to be honourably acquitted. Even though the respondent stood served, however, there is no appearance on his behalf. I have heard learned counsel for the petitioner/accused and have also gone through the material that has come up on record. 8. At the out-set, Sections 118 and 139 of the Act, read as under 118. Presumptions as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made:- (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; (b) as to date that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsements that the endorsements appearing upon a negotia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defence and it is conceivable that in some cases the accused may not need to add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. 21. The accused has also an option to prove the nonexistence of consideration and debt or liability 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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