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TMI Blog2019 (6) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... ny opinion on the merits of the case or the same may prejudice any of the parties. Therefore, in the given circumstances, this Court has no other option but to set-aside the order of acquittal passed by learned trial Magistrate and direct it to re-hear the matter bearing in mind the provisions, more particularly, those contained in Sections 118 and 139 of the Act. - Cr. Appeal No.212/2019 - - - Dated:- 27-5-2019 - Mr. Justice Tarlok Singh Chauhan, Judge For the Appellants : Mr. Ramakant Sharma, Senior Advocate with Ms. Devyani Sharma, Advocate. For the Respondent : Mr. Maan Singh, Advocate. ORDER Tarlok Singh Chauhan, Judge (Oral) Cr.MP(M) No.339 of 2019 Heard. Leave to appeal granted. Application stands disposed of. Appeal be registered. Cr. Appeal No.212/2019 The appellant, who is the complainant, being aggrieved by acquittal of the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short the Act), has filed the instant appeal. 2. Looking into the nature of the order I propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in mind the presumptions by virtue of these Sections, which reads 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; 139. 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. 9. Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act No. 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring the commitments by way of payment through cheques. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature ... 14. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability. 12. To the same effect is the decision of the Hon ble Supreme Court in Krishna Janardhan Bhat vs. Dattatraya G. Hegde (2008) 4 SCC 54 wherein the Hon ble Supreme Court observed as under:- 32 .. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. * * * 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities ... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumption' 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 . * * * 18. Applying the definition of the word `proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant. 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device 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 of proof. 17. In T.P. Murugan vs. Bojan (2018) 8 SCC 469 , the Hon ble Supreme Court has held that once a cheque has been signed and issued in favour of holder of cheque, there is statutory presumption that it is issued in discharge of a legally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability. 25. In R. Vijayan vs. Baby (2012) 1 SCC 260 this Court observed that the object of Chapter XVII of the Negotiable Instruments Act is both punitive as also compensatory and restitutive. It provides a single forum and single proceeding for enforcement of criminal liability by reason of dishonour of cheque and for enforcement of the civil liability for realization of the cheque amount, thereby obviating the need for the creditor to move two different fora for relief. This Court expressed its anguish that some Magistrates went by the tra ..... 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