9911796707
TMI Blog2020 (2) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... d 20.04.2018 passed by the High Court of Delhi in Crl. L.P. No.259 of 2018 by which the High Court has dismissed the said application for leave to appeal challenging the judgment and order of acquittal passed by the Learned Trial Court acquitting the original accused respondents herein for the offence under Section 138 of the Negotiable Instruments Act (for short, 'the N.I. Act') and thereby confirming the judgment and order of acquittal passed by the Learned Trial Court, the original complainant has preferred the present appeal. CRIMINAL APPEAL NO. 271 OF 2020 2. According to the complainant, the appellant is in the business of sale and purchase of Foreign Exchange. That the original accused respondents herein approached the appellant for issuance of Foreign Exchange Currency/USD Travel Currency Card. According to the original complainant appellant herein, a total sum of Rs. 19,01,320/was paid to the accused through VTM (Visa Travel Money Card) which came to be withdrawn by the accused on different days on 10.01.2014, 20.02.2014 and 22.02.2014. According to the complainant, the original accused respondents herein paid Rs. 6,45,807/only leaving a balance of Rs. 12,55,513/. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt as well as the High Court have committed a grave error in acquitting the original accused for the offence under Section 138 of the N.I. Act. 3.1 It is further submitted by Learned Counsel appearing on behalf of the original complainant - appellant herein that both the Courts below have not appreciated and/or considered the presumption in favour of the complainant under Section 139 of the N.I. Act. It is further submitted by Learned Counsel appearing on behalf of the complainant that both the Courts below have materially erred in acquitting the accused. It is submitted that the accused had admitted issuance of the cheque as well as the signature on the cheque. It is submitted that therefore there is a presumption under Section 139 of the N.I. Act in favour of the complainant. It is submitted that thereafter the onus would be upon the accused to rebut the presumption and for that, the accused has to lead the evidence. It is submitted that in the present case no evidence has been led on behalf of the accused to rebut the presumption. It is submitted that the presumption mandatory by Section 139 of the N.I. Act includes the presumption that there exists a legally enforceable debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden shifts on the complainant to prove his financial capacity and other facts. 4.5 Making the above submissions and relying upon the cases, it is prayed to dismiss the present appeal. 5 We have heard the learned counsel appearing on behalf of the respective parties at great length. 5.1 We have considered minutely the evidence on record, both oral as well documentary. We have also considered and gone through the judgment and order passed by the Courts below acquitting the respondents accused for the offence under Section 138 of the N.I. Act. 5.2. What is emerging from the material on record is that the issuance of cheque by the accused and the signature of the accused on the said cheque are not disputed by the accused. The accused has also not disputed that there were transactions between the parties. Even as per the statement of the accused, which was recorded at the time of the framing of the charge, he has admitted that some amount was due and payable. However, it was the case on behalf of the accused that the cheque was given by way of security and the same has been misused by the complainant. However, nothing is on record that in the reply to the statutory notice it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is existence of legally enforceable debt or liability can be contested. In Paragraph 27 this Court observed and has held as under: "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 defendant accused cannot be expected to discharge an unduly high standard or proof." 6.3 In the case of Kishan Rao (Supra) after considering the decision of this Court in the case of Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it 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." 6.4 Now so far as the reliance is placed by Learned Counsel appearing on behalf of the accused on the decision of this Court in the case of Basalingappa (supra), on going through the said decision, we are of the opinion that the said decision shall not be applicable to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the N.I. Act. It appears that both, the Learned Trial Court as well as the High Court, have committed error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139 of N.I. Act. As observed above, Section 139 of the Act is an example of reverse onus clause and therefore once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter it is for the accused to rebut such presumption by leading evidence. 8. In view of the reasons stated above, the impugned judgment and order passed by the High Court and that of the Metropolitan Magistrate acquitting the original accused respondents herein for the offence under Section 138 of the N.I. Act cannot be sustained and the same deserves to be quashed and set aside and are accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
