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TMI Blog2021 (11) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... as dishonoured for want of sufficient funds, the same does not constitute an offence under Section 138 of the Act - it would be hazardous to convict the respondent only on the basis of the presumption under section 139 of the Act in the absence of any material, and which material ordinarily would be expected to be in the complainant's possession and control, to show that loan was in fact disbursed to the accused. The standard of the proof that is required to probabilise the suggestive case of the accused in a case filed under Section 138 of Negotiable Instruments Act is that the presumption under Section 139 of Negotiable Instruments is as that of statutory presumption, however, the same is rebuttable. The standard of proof that requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff: Laxman Singh Bhati JUDGMENT The appellant has filed the present criminal leave to appeal being aggrieved by the judgment dt. 29.11.2019 passed by the learned Judicial Magistrate, Jaisalmer in Criminal Regular Case No. 774/2013 (1188/14), whereby the learned Magistrate has acquitted the respondent No. 2 for offence under Sec. 138 of the Negotiable Instruments Act ('the Act', for short). Briefly, the facts of the case are that appellant filed a complaint under Section 138 of the Act alleging that the respondent No. 2 had taken loan from the appellant in the sum of ₹ 35,000/- and the appellant Bank sanctioned the said loan on 11.11.2005 and the respondent accused agreed to pay the instalments regularly and aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4344, A.V. Murthy Vs. B.S. Nagabasavanna reported in (2002) AIR (SC) 985, Hiten P. Dalal Vs. Bratindranath Banerjee reported in (2001) AIR (SC) 3897 and Kumar Exports Vs. Sharma Carpets reported in (2009) AIR (SC) 1518. I have heard the learned counsel for the appellant and perused the impugned judgment. The learned counsel for the appellant has contended that a sum of ₹ 35,000/- was taken as loan by the respondent, however, the appellant failed to produce any relevant document like Bank statement or loan sanction letter to prove that the cheque was issued against the loan taken by the respondent. A bare perusal of the impugned judgment clearly reveals that the learned trial court has given the cogent reasoning for acquitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of preponderance of probability and not on the principle as being examined in the criminal case to prove the guilt of the accused beyond reasonable doubt . It is well settled that the proceedings under Section 138 of Negotiable Instruments Act are quasi-criminal in nature. The principles that will apply to acquittal in other criminal cases are not applicable in cases instituted under the Act. The test of proportionality should guide the construction and interpretation of reverse onus clauses and the respondent/accused cannot be expected to discharge an unduly high standard of proof. Since the proceedings under Section 138 of the Negotiable Instruments Act are quasi-criminal in nature, it is sufficient enough for the accused to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umption in such cases. However, while the presumption is indeed triggered, the presumption is rebuttable. The burden on the accused is to make out a probable defence. The accused need not step into the witness box or adduce direct evidence. It would suffice if the accused is in a position to create a reasonable doubt that the version of the complainant is false. In the factual matrix, the accused has more than succeeded in rebutting the presumption. Since cogent reasons have been given by the learned Magistrate for acquitting the accused-respondent, this Court does not find any illegality or perversity in the impugned judgment. This criminal leave to appeal being devoid of any merit is hereby dismissed. - - TaxTMI - TMITax - Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X
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