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TMI Blog2024 (9) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... ESH JAIN VERSUS AJAY SINGH [ 2023 (10) TMI 418 - SUPREME COURT] . Hence, judgment relied upon by the learned counsel for the respondent is not applicable in the facts and circumstances of this case. The judgment of acquittal dated 24.8.2022 passed in Criminal Case No. 258/2016 by learned Special Metropolitan Magistrate, NI Act, Jodhpur stands hereby set aside and the sole respondent is convicted for the offence under Section 138 of the Negotiable Instruments Act - Considering the mitigating and aggravating circumstances appearing in this case as well as the fact that no previous conviction is there against the sole respondent, 2 months simple imprisonment is awarded alongwith fine of the cheque amount plus 30% of the same as compensation to be payable within a month, failing which, the said amount would be recoverable according to law prescribed for recovery of fine. Criminal appeal allowed. - HON'BLE MR. JUSTICE BIRENDRA KUMAR For the Appellant : Mr. Dinesh Kumar Ojha. For the Respondent : Mr. Mool Singh Bhati, PP. JUDGMENT 1. This appeal against acquittal of the sole respondent has been preferred under Section 378(4) Cr.P.C. Leave to appeal was allowed by order dated 29.5.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant had capacity to pay the referred amount to the accused. Learned trial Judge concluded that the accused/respondent failed to discharge his burden under Section 139 of the Negotiable Instruments Act. 7. However, the learned trial Court considered certain evidences irrelevant for the purpose of deciding whether offence under Section 138 of the Negotiable Instruments Act is made out or not. Learned trial court took into notice deposition of PW.1 that there was a written agreement between the parties in respect of loan advanced and the cheque was issued for principal as well as interest of the loan amount. The said documents were not produced before the Court inspite of undertaking by the appellant. Hence, adverse inference would be drawn. Learned trial Court further noticed that the complainant had not stated anything in the complaint petition regarding interest payable on the money advanced to the accused/respondent. For the aforesaid reason, according to the trial Judge, the accused succeeded in discharging his burden under Section 139 of the Negotiable Instruments Act. 8. Learned counsel for the appellant contends that the learned trial Judge has travelled beyond the scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f money by giving a notice; in writing, to the drawer of the cheque, 5 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. For the purposes of this section, debt of other liability means a legally enforceable debt or other liability. 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. 11. The aforesaid provision was considered in Rajesh Jain vs. Ajay Singh, reported in AIR 2023 SC 5018, wherein the Hon ble Supreme Court decided the requirement to prove the offence under Section 138 of the Negotiable Instrument Act as follows:- 26. In Gimpex Private Limited vs. Manoj Goel, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability. Further, in paras 35, 36, 37 and 38, the Court observed as follows:- 35. Section 139 of the NI Act, which takes the form of a shall presume clause is illustrative of a presumption of law. Because Section 139 requires that the Court shall presume the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. The rules discussed hereinbelow is common to both the presumptions under Section 139 and Section 118 and is hence, not repeated-Reference to one can be taken as reference to another. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase unless the contrary is proved . 36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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