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TMI Blog2024 (3) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... includes the presumption regarding the existence of a legally enforceable debt or liability and that the holder of a cheque is also presumed to have received the same in discharge of such debt or liability. It was clarified in the aforesaid decision that the presumption of the existence of a legally enforceable debt or liability is, of course, rebuttable and it is open to the accused to raise a defence, wherein the existence of a legally enforceable debt or liability can be contested. Without doubt, the initial presumption is in favour of the complainant - An accused may not be expected to discharge an unduly high standard of proof, reverse onus clause requires the accused to raise probable defence for creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof for doing so would necessarily be on the basis of preponderance of probabilities and not beyond shadow of any doubt. In present case, in order to rebut the presumption, petitioner contended that complainant did not have the financial capacity; that he did not show the amount allegedly lent to the complainant in his income tax returns; and that cheques we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent ORDER DEEPAK GUPTA , J. This revision is directed against conviction of the petitioner as recorded by the Trial Court and as affirmed by the Appellate Court. 2. Perusal of the paper-book would reveal that complainant Mander Singh (respondent herein) filed a complaint in the Court of learned Judicial Magistrate 1st Class, Bathinda seeking prosecution of accused Hakam Singh (petitioner herein) under Section 138 of the Negotiable Instruments Act. It was stated that accused was running business in the name and style of M/s H.S. Industries as its sole proprietor. In order to meet the necessities for his business, accused borrowed an amount of Rs. 8,00,000/- from the complainant in November, 2009 on interest @ 1% per annum and agreed to repay the amount within a period of one year. On 31.12.2010, accused after settlement of the account, paid the interest component in cash and in order to pay the principal amount, issued two cheques bearing No.621304 and 621306 both dated 31.12.2010 (Ex.CW1/C Ex.CW1/E) for an amount of Rs. 4,00,000/- each drawn on ICICI Bank Ltd., Sangrur with assurance of their encashment. However, on presentation of the cheques by the complainant, the same were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Rs. 65,000/- from the account of the petitioner, due to which he was removed and that cheques in question were managed by the complainant at that time, which have been misused by him. Besides, complainant admitted in cross-examination that ink used for filing the body of the cheques is different from the ink used in the signature, which further creates doubt in the complainant s version. Further, the account from which the cheques were issued had been closed way back in 2006, whereas the cheques were presented in 2010 and that for all these reasons, conviction has been wrongly recorded. With these submissions, prayer is made for setting aside the impugned conviction recorded by the Trial Court and as affirmed by the Appellate Court, by accepting this revision; and to acquit the petitioner from the charges. 5. Learned counsel for the respondent, on the other hand, defended the impugned judgments and submit that all the points as raised in this revision were duly considered by the Courts below and the same were found to contain no merit. Learned counsel contends that presumption in favour of the respondent- complainant under Section 139 of the Negotiable Instruments Act, has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provides for speedy remedy in a criminal forum, in relation to dishonour of cheques. Nonetheless, the Hon ble Supreme Court cautions that the offence under Section 138 of the NI Act is at best a regulatory offence and legally falls in the arena of a civil wrong and therefore, the test of proportionality ought to guide the interpretation of the reverse onus clause. An accused may not be expected to discharge an unduly high standard of proof, reverse onus clause requires the accused to raise probable defence for creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof for doing so would necessarily be on the basis of preponderance of probabilities and not beyond shadow of any doubt. 10. It is in the light of the aforesaid legal position that it is required to be seen that whether accused has been able to probabilise his defence. Here itself, it may be noted that the accused is not required to prove his defence on the standard of proof beyond reasonable doubt and rather, he is simply required to probabilise his defence. The presumption under Section 139 of the Act can be rebutted even by evidence led by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint and acquittal of accused by holding the same to be illegal and unsustainable. Hon ble Supreme Court held as under :- 20. The Trial Court and the High Court proceeded as if, the appellant is to prove a debt before civil court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability. 21. There is the mandate of presumption of consideration in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the Act. 15. Similarly, in Rohitbhai Jivanlal Patel v. State of Gujarat another (2019) 18 SCC 106, it was held by the Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Writ Petition No.29144/2018 titled Dr. M. Krishna Shetty Vs. Sri. H.R.Nagabhushan, on 29th day of August 2018, Karnataka High Court has held that the prosecution under Section 138 of N.I.Act cannot be stalled for non-compliance of Section 269 SS of the Income Tax Act. Any cash transaction in violation of section 269 SS of Income Tax Act may give rise to an independent criminal offence, but on account of violation of the said provision, the prosecution of the petitioner for the alleged dishonour of cheque under Section 138 of Act does not become bad in law. 19. Further, the accused petitioner claims misuse of the cheques. Complainant in his testimony has emphatically denied that he ever worked as an employee of accused in 2006 in his factory. He denied that he was ever the accountant of the accused. He further denied to have withdrawn Rs. 65,000/- from the account of the accused in the year 2006 or another amount of Rs. 1,65,000/- or to have cheated the accused. Though he admitted that he had withdrawn amount of Rs. 70,000/- from the bank in which accused had maintained his account but explained that amount was withdrawn by him through cheque number 700820, which was earlier d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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