9911796707
TMI Blog2023 (11) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... is rebuttable presumption. It is system of reverse onus burden. In case of MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA ANR. [ 2006 (7) TMI 576 - SUPREME COURT] the Hon ble Apex Court has considered sections 118(a), 138 and 139 of Negotiable Instrument Act and held that presumption both under section 118(a) and 139 are rebuttable in nature. Looking back to the contention raised by the petitioner, it is the case of the petitioner that there is difference in agreement to sell and complaint regarding number of flats and therefore, it cannot be said that questioned cheques were given for discharge of any liability. This argument was canvassed with a view to submit that transaction is different. Cheques in question is given for transaction for flat Nos.C/402 to C/406 as per agreement on record but the complainant has mentioned that cheques in question has been given for transaction for flat Nos.C/202 to C/ 206. Mere there is difference regarding flat numbers in agreement and complaint, it would not attract submission that cheques were not given for any legal liability. There may be typographical mistake. Burden can be discharged under section 139 of NI Act by the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Valiya under section 138 of N.I.Act alleging that as many as 4 cheques totaling Rs.28 lakhs given by the petitioner have been return unpaid. Amount of cheques are not paid even after statutory notice was served (Annexure A). Complainant has filed private complaint alleging offence under section 138 of N.I.Act against the petitioner. 3.2. Learned JMFC, Valiya has issued process against the present petitioner. Process was challenged by way of Criminal Revision Application No.94 of 2023 before the learned District Court, Bharuch. Detail and comprehensive judgment therein did not find favour the petitioner. Thus, the petitioner is before this Court by way of this petition seeking above quoted reliefs. 4. Learned advocate Mr.Vyas for the petitioner referring to judgment in the case of Haji Iqbal @ Bala v/s. State of Uttar Pradesh [2023 (0) AIJEL-SC 72165] and Girishbhai Ambalal Rathod v/s. State of Gujarat [2023(0) AIJEL-HC 247138] would submit that it was duty of the Court to look into the matter and attentive circumstances emerging from the record of the case, over and above averments, if it is found that filing of complaint is vexatious and frivolous proceedings, the Court may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 139 of N.I.Act which reads as under :- 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. 6.1. So it raises presumption in favour of the complainant that he has received cheques of nature referred in section 138 of the N.I.Act for discharge of debt, in whole or in part or any other liability. The complainant being holder of the cheques and in view of the fact that signature on the cheques is not denied by the accused / petitioner, legal presumption shall be drawn that cheques were issued for discharge of debt or any other liability. This presumption stands till it has been discharged. Presumption under section 139 is rebuttable presumption. It is system of reverse onus burden. 7. In case of M.S.Narayana Menon v/s. State of Kerala [(2006) 6 SCC 39], the Hon ble Apex Court has considered sections 118(a), 138 and 139 of Negotiable Instrument Act and held that presumption both under section 118(a) and 139 are rebuttable in nature. Explaining expression may presume an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be shifted. Para 18 to 20 are relevant, which reads as under :- 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come in the witness box to support his defence. 11. Recently, in the case of Jain P. Jose v/s. Santosh [2022 Live Law (SC) 979] the Hon ble Apex Court has observed as follows :- Referring the Sections of the N.I. Act, a three Judges Bench of this Court in T. Vasanthakumar Vs. Vijaykumari (2015) 8 SCC 378, has held: 9. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus the burden was on the accused to disprove the cheque or the existence of any le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 12. Looking back to the contention raised by the petitioner, it is the case of the petitioner that there is difference in agreement to sell and complaint regarding number of flats and therefore, it cannot be said that questioned cheques were given for discharge of any liability. This argument was canvassed with a view to submit that transaction is different. Cheques in question is given for transaction for flat Nos.C/402 to C/406 as per agreement on record but the complainant has mentioned that cheques in question has been given for transaction for flat Nos.C/202 to C/ 206. Mere there is difference regarding flat numbers in agreement and complaint, it would not attract submission that cheques were not given for any legal liability. There may be typographical mistake. Since trial is at large before the learned Trial Court, this Court is not putting some more reasons for denying the case of the petitioner as it would prejudicially effect defence of the petitioner, but the fact remains that contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
