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TMI Blog2019 (10) TMI 1578X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant instituted a complaint under S. 138 of the Negotiable Instruments Act (hereinafter, 'Act') alleging therein that in the month of August/September, 2014, he sold 750 apple boxes to the accused who initially made payment of Rs. 3.00 Lakh to the complainant, but for payment of balance amount, accused issued two cheques bearing Nos. 736046 dated 3.9.2014 amounting to Rs. 3.00 Lakh and 736047 dated 8.9.2014 amounting to Rs. 3,37,500/-, (Exts. CW-1/B and CW-1/D) drawn on State Bank of India, Theog, however, the fact remains that the aforesaid cheque on presentation to the Bank concerned were dishonoured on account of insufficient funds in the account of the accused. Immediately after receipt of memo from the Bank concerned, complainant served a demand notice (Ext. CW-1/F) to the accused calling upon him to make payment of the amount covered by cheques within the time stipulated in the notice. Since the accused failed to make the payment within the time prescribed in the legal notice, complainant was compelled to institute proceedings under S. 138 of the Act against the accused. Learned trial Court, in the totality of evidence led on record by the parties, held ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the parties and perused the material available on record, this court finds no illegality or infirmity in the judgments passed by learned Courts below. Though, Mr. Onkar Jairath, learned counsel appearing for the accused, made a serious attempt to persuade this Court to agree with his contention that learned Courts below have failed to appreciate the evidence in its right perspective, but this Court finds from the record that it stands duly proved on record that the cheque in question, Ext. CW-1/C was issued by accused towards discharge of her lawful liability. In nutshell, defence as set up by the accused is that she never filled in the amount in the cheque in question but since there is not dispute, if any, with regard to signatures on the cheque, Ext. CW-1/C, rather same stand admitted, learned Courts below have rightly held that benefit of presumption as envisaged under Ss. 118 and 139 of the Act is available to the complainant being holder of cheque. Accused, in her statement under S. 313 Cr.P.C., has categorically admitted that she has borrowed a sum of Rs. 3,64,000/- from the complainant. She also admitted that the said amount was to be repaid by her alongwith interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tents of cheque Ext. CW-1/C were not filled in by her. In her cross-examination, she categorically admitted that the complainant had advanced loan to her for the purchase of vehicle. She also admitted due execution of loan agreement, Ext. P6. Most importantly, this witness categorically admitted her signatures upon the cheque Ext. CW-1/C. 10. Having carefully perused the evidence available on record, as has been discussed herein above, this Court is in total agreement with the complainant that the cheque in question, Ext. CW-1/C was issued by the accused for consideration in discharge of her debt/liability. Since presumption as referred to herein above has not been successfully rebutted by the accused, she rightly came to be held guilty of having committed offences punishable under S. 138 of the Act. 11. Once signatures on the cheque are not disputed rather stand duly admitted, aforesaid plea with regard to cheque having not been issued towards discharge of lawful liability, rightly came to be rejected by learned Courts below. Reliance is placed upon Hiten P. Dalai v. Bartender Nath Bannerji, (2001) 6 SCC 16, wherein it has been held as under: "The words 'unless the contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely upon the material submitted by the complainant. Needless to say, if the accused/drawer of cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, statutory presumption under S. 139 of the Act regarding commission of the offence comes into play. It would be apt to reproduce following paras of judgment (supra) herein below: "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 138 can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ummons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy." 15. Recently, Hon'ble Apex Court, having noticed various judgments passed on earlier occasions, reiterated the principles to be kept in mind while extending benefit of presumption under Ss. 118 and 139 of the Act ibid, in Basalingappa vs. Mudibasappa, Cr. Appeal No. 636 of 2019 decided on 4.9.2019. Hon'ble Apex Court held as under: "23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:- (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 27 (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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