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TMI Blog2025 (3) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Act Court No.34, Ahmedabad in Criminal Case No. 307 of 2016, whereby the original accused - respondent No. 2 herein came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act"). The respondent No 2 is herein after referred to as "the accused" as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts culled out from the memo of the present application as well as the impugned judgment and order and paper book filed by the applicant are as under: 2.1. The applicant is doing the business of gold and silver ornaments in the name of Shree Ambika Ornaments and the accused is also into the business of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as very old and applicant has filled the details in the cheque himself by forging the cheque and the return memo has been wrongly obtained. The bill at Exh.14 is false and concocted false evidence and the bill was not proved. The accused pleaded that he is innocent and has not committed offence and a false complaint has been filed by the applicant by forging the cheque and fabricating/concocting the evidence to take social revenge and he does not deal in silver or gold but is in the business of graphics. The arguments of the advocates for both the parties were heard and by impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N.I. Act. 3. Being aggrieved and dissatisfied with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." 7.2. The Apex Court in Tedhi Singh vs Narayan Dass Mahant reported in (2022) 6 SCC 735 has observed as under: "7. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the N.I. Act provides that Court shall presume 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. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. xxxx 25. xxxx 26. xxxx 27. xxxx 28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs. 6 lakhs given to the Accused, within 02 year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments and merely by production of the bill produced at Exh.14, it cannot be said that the goods were sold to the accused as the bill did not bear, the customer's signature and the applicant did not produce the Rojmel, original books of accounts and the original stock statement. The accused had sent a reply to the notice and had denied all the facts stated by the applicant and had also raised the issue that his cheque book was lost before the competent authority and has raised raised a probable defence and successfully rebutted the presumption. 9. Moreover, the learned Trial Court has considered all the documents produced by the applicant and has also considered that the defence of accused is believable and applicant had not produced any co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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