9911796707
TMI Blog2025 (1) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the offence under Section 138 of the NI Act, particularly where a presumption is drawn that the holder has received the cheque for the discharge, wholly or in part, of any debt or liability. Of course, the accused is entitled to bring on record the relevant material to rebut such presumption and to show that preponderance of probabilities are in favour of his defence but while examining if the accused has brought about a probable defence so as to rebut the presumption, the appellate court is certainly entitled to examine the evidence on record in order to find if preponderance indeed leans in favour of the accused. '. It is also well settled that once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque/ respondent received the cheque in discharge of a legally enforceable debt or liability are raised against the accused. On a perusal of the record, it is seen that right from the time of framing of notice, the statement of the respondent under Section 313 of the CrPC, and during the course of the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a sum of Rs. 6,40,000/- to the respondent in cash. It is alleged that thereafter, the respondent, in discharge of his liability, had issued a cheque bearing no. 000049 dated 05.06.2015 for a sum of Rs. 6,40,000/-. Subsequently, on presentation, the subject cheque returned unpaid with the remarks Funds Insufficient. Thereafter, the appellant sent a legal demand notice dated 26.06.2015. Subsequently, since the payment was not made within 15 days of the receipt of the demand notice, the appellant filed a complaint under Section 138 of the NI Act. 5. The respondent, in his statement, under Section 313 of the Code of Criminal Procedure, 1973 ( CrPC ) denied taking any loan from the appellant. He stated that in December, 2014, it was infact the husband of the appellant that requested the respondent to advance a loan to enable the husband of the appellant to purchase a taxi for he was unemployed. The respondent stated that the appellant s husband s service in police was terminated. For this reason, the appellant s husband wanted to purchase a taxi and took a loan of Rs. 6,40,000/- from the respondent. 6. He stated that the appellant is the bua of the respondent s wife. He stated that fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s signature on the cheque, and deposed that after the cheque got bounced, he made a police complaint against the appellant. 10. Considering the aforesaid, the learned ASJ acquitted the respondent of the offence under Section 138 of the NI Act while specifically noting that the respondent had successfully rebutted the presumptions raised against him. 11. Aggrieved by the impugned judgment, the appellant has filed the present appeal. 12. The learned counsel for the appellant submitted that the learned ASJ erred in acquitting the respondent of the offence under Section 138 of the NI Act. He submitted that since the signature on the subject cheque was not disputed, the presumptions under Section 139 and 118 existed in the favour of the appellant and against the respondent. 13. He submitted that the fact that the respondent contends that he had advanced the subject cheque, and yet failed to keep sufficient funds in his account, itself manifested the mala fide intention of the respondent and ought not to be overlooked. 14. He submitted that the respondent failed to rebut the presumptions raised against him under Section 139 and 118 of the NI Act, and consequently prayed that the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgments leads to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view ismore probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law. The principles aforesaid are not of much debate. In other words, ordinarily, the appellate court will not be upsetting the judgment of acquittal, if the view taken by the trial court is one of the possible views of matter and unless the appellate court arrives at a clear finding that the judgment of the trial court is perverse i.e. not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essentially to remind the appellate court that an accused is presumed to be innocent unless proved guilty beyond reasonable doubt and a judgment of acquittal further st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt would then take an overall view based on the evidence on record and decide accordingly. 55. At the stage when the courts concluded that the signature had been admitted, the court ought to have inquired into either of the two questions (depending on the method in which the accused has chosen to rebut the presumption) : Has the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail : Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case ? xxx xxx xxx 57. Einstein had famously said: If I had an hour to solve a problem, I'd spend 55 minutes thinking about the problem and 5 minutes thinking about solutions. Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one's ability to identify the problem. A well-defined problem often contains its own solution within it. 58. Drawing from Einstein's quote, if the issue had been properly framed after c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there existed no debt in the manner so pleaded by the complainant in his complaint/ demand notice or the evidence. Once the accused successfully raises a probable defence to the satisfaction of the Court, his burden is discharged, and the presumption disappears. The burden then shifts upon the complainant, who then has to prove the existence of such debt as a matter of fact. The Hon ble Apex Court in Rajesh Jain v. Ajay Singh (supra), in this regard has observed as under: 41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words until the contrary is proved occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [ Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court also pertained to questioning the financial wherewithal of the appellant, and her capacity to advance the loan in question. It was contended that the respondent had been doing the business of Tours and Travels for the past 10 years, had paid income tax for the years 2013-2018, owned two vehicles which were driven by the drivers. It was contended that for the same reason, it was rightly observed by the learned ASJ that the respondent was more economically sound in comparison to the appellant. 28. The Hon ble Apex Court in the case of Tedhi Singh v. Narayan Dass Mahant : (2022) 6 SCC 735 , in relation to the defence pertaining to the financial capacity of the complainant to advance a loan had observed as under: 10. The proceedings under Section 138 of the NI Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in our view were right in holding on those lines. However, the accused has the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of the purpose or date of advancement of the loan in question. 32. Once the execution and issuance of the cheque is not denied, the Courts ought to proceed on the presumption that the cheque was issued in discharge of a legally enforceable debt/liability. It is then entirely up to the respondent to raise a probable defence on a preponderance of probabilities to show that there existed no debt/liability in the manner as pleaded by the complainant. Once the accused successfully raises a probable defence, only then does the burden shift upon the complainant, who then, has to show the existence of the debt as a matter of fact. 33. In the present case, except for the averments made by the respondent, no material is led to demonstrate that the appellant did not possess the financial wherewithal to advance the said loan in question. Even at the stage of cross-examination, no question is put to the appellant to indicate that she did not possess the financial means to advance the loan in question. For this reason, in the opinion of this Court, the burden never shifted upon the appellant to demonstrate that she possessed the means to advance the said loan. 34. Further, it is also the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
