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TMI Blog2021 (11) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... .P.C., nowhere denied the factum with regard to issuance of cheque, but claimed that same was issued as a security. Since, there is no dispute with regard to issuance of cheque in question as well as signatures thereupon of the accused, there is presumption under Sections 118 and 139 of the Act that cheque was issued by the accused towards discharge of her lawful liability. No doubt, aforesaid presumption is rebuttal, but for that purpose, accused was under obligation to raise probable defence, which could be either raised by leading positive evidence or by referring to the material adduced on record by the complainant - in the instant case, accused has not been able to raise any probable defence, rather she has simply stated that she had handed over blank cheque. Once, she has admitted factum with regard to borrowing sum of ₹ 1,00,000/-, it is not understood that where was the occasion for her to issue blank cheque, as has been claimed by her. Entire evidence led on record by the respective parties, clearly indicates that accused had issued cheque Ex.CW1/B to the complainant towards discharge of her lawful liability. Though, accused claimed before the court below that she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imla, H.P., alleging therein that on 5.6.2013, accused demanded friendly loan of ₹ 6,00,000/- from the complainant. Since complainant had friendly relation with her, he made payment of ₹ 6,00,000/- to the accused in cash on 5.6.2013. With a view to discharge her liability, accused issued cheque No. 588813, dated 22.08.2013(Ex.CW1/B), amounting to ₹ 6,00,000/- in favour of the complainant drawn at State Bank of India of her account No. 32608692802, but fact remains that on presentation aforesaid cheque was dishonoured on account of insufficient funds in the account of the accused, as is evident from memo Ex. CW/D, issued by the bank concerned. After receipt of aforesaid memo, complainant issued legal notice Ex.CW1/E, dated 29.11.2013 through registered A.D. post Ex.CW1/F, calling upon the accused to make the payment good within the stipulated time, but since accused failed to make the payment good within the time stipulated in the legal notice, complainant was compelled to institute complaint under Section 138 of the Act in competent court of law. 3. Learned trial Court on the basis of the evidence adduced on record by the respective parties, held accused guilty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, had given blank cheque to the complainant, which was subsequently misused by the complainant. 7. Complainant with a view to prove his case examined himself as CW-1 and deposed through his affidavit EX.CW1/A, perusal whereof reveals that he stated/narrated the contents of the complaint verbatim in the affidavit tendered in the evidence. Besides above, this witness also tendered in evidence Cheque Ex.CW1/B, cheque presentation slip Ex.CW1/C, dishonour memo Ex.CW1/D, legal notice Ex.CW1/E, postal receipt Ex.CW1/F and acknowledgment Ex.CW1/G. 8. Accused in her statement recorded under Section 313 Cr.P.C., nowhere denied the factum with regard to issuance of cheque, but claimed that same was issued as a security. Since, there is no dispute with regard to issuance of cheque in question as well as signatures thereupon of the accused, there is presumption under Sections 118 and 139 of the Act that cheque was issued by the accused towards discharge of her lawful liability. No doubt, aforesaid presumption is rebuttal, but for that purpose, accused was under obligation to raise probable defence, which could be either raised by leading positive evidence or by referring to the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply 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. 32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that she had received ₹ 1,00,000/- 3-4 years earlier and lieu thereof, had given complete payment to the complainant, but she does not remember whether she demanded her cheque from the complainant or not. She also deposed that she was not to give any money to the complainant. In her cross-examination, she denied that during the pendency of case she had given two cheques. She could not recollect that on 5.1.2017 she had given cheque bearing No. 588835 for ₹ 1,00,000/- in the Court. However, during her cross-examination she admitted that she had issued cheque Ex. PX for sum of ₹ 1,00,000/- to the complainant, which bears date 9.1.2017. She also admitted that on 10.3.2017, she issued another cheque Ex.PZ to the complainant and both the cheques issued to the complainant were not honoured. She feigned her ignorance that why she had given two cheques to the complainant. She stated that cheque Ex.CW1/B is of her and bears her signatures in red circle 'A' on the same. She also admitted that on 20.11.2013, there was insufficient fund in her account and Ex.CW1/G bears her signatures in red circle. 12. Entire evidence led on record by the respective partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 money 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 of proof . The Court further observed that 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 al preponderance of probabilities. 24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. 16. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power. 17. True it is that the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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