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TMI Blog2022 (11) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the tune of Rs.1,20,000/- to the complainant. 2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant (for short 'complainant') filed a complaint under Section 138 of the Negotiable Instruments Act (for short 'Act') in the Court of learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla,H.P., alleging therein that on 10.08.2016, he lent sum of Rs. 80,000/- to the accused, who with a view to discharge his liability, issued cheque No.283466, dated 25.08.2016 (Ex.CW1/B), amounting to Rs.80,000/- in his favour drawn at UCO Bank, Jubbal, District Shimla. However, fact remains that aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the account of the accused vide memo dated 17.11.2016 Ex. CW1/C. Since, despite having received notice, accused failed to make the payment good within the time stipulated in the legal notice, complainant was compelled to initiate proceedings under Section 138 of the Act, in the competent court of law. 3. Learned trial Court on the basis of the evidence adduced on record by the respective parties, held accused guilty of having committed the offence pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned ignorance qua the rest of the incriminating evidence. He raised defence that he is not aware as to how his cheque came into possession of the complainant. He admitted that cheque Ex.CW1/B belongs to him. Needless to say, there is presumption in favour of the holder of the cheque as provided under Sections 118 and 139 of the Act that cheque was issued for discharge of lawful liability. Though, aforesaid presumption is rebuttable and could be rebutted by the accused by raising probable defence. Probable defence can be raised either by leading positive evidence or by referring to the documents/evidence led on record by the complainant. However, in the instant case petitioner has miserably failed to rebut the aforesaid presumption and as such, Court below had no option but to hold the petitioner guilty of his having committed an offence punishable under Section 138 of the Act. 8. Complainant, Trilok Chand while appearing in the witness box as CW-1 tendered affidavit Ex.CW1/A. He successfully proved that cheque No.283466, dated 25.08.2016, amounting to Rs.80,000/- Ex.CW1/B, dishonour memo dated 17.11.2016 issued by the banker of accused Ex.CW1/C, demand notice Ex.CW1/D, postal rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:- "23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 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 the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138can 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly scanned the entire evidence available on record, this Court finds that complainant successfully proved all the ingredients of Section 138 of the Act and since accused despite having received legal notice failed to send any reply to the complainant raising therein dispute with regard to issuance of cheque, if any, in favour of the complainant, there is presumption in favour of the complainant that cheque in question was issued by the accused towards discharge of his lawful liability. Hence, it cannot be concluded that courts below have committed any illegality and infirmity while holding accused guilty of having committed offence punishable under Section 138 of the Act. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452, wherein it has been held as under:- "In its revisional jurisdiction, the High Court can call for and examine the record of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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