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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 ..... date and the quantity of goods taken by the accused. The learned Trial Court has concluded that the applicant has not proved that the accused is doing the business of gold and silver, and the applicant has not proved that the goods mentioned in the bill produced at Exh.14 were received by the accused - 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. 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 cogent evidence to disbelieve the defence of accused and has not produced any evidence in support of written arguments submitted by the applicant. The applicant has failed to prove his recoverable debt and the applicant has failed to prove beyond reasonable doubt that the cheque in question was given as repayment of a legal debt as the cheque book with series number of the cheque was lost and a publication was also given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itan Magistrate, Ahmedabad. 2.2. The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exh.07 and the evidence of the applicant was taken on record. The applicant was examined on oath and 12 documentary evidences were produced in support of his case and the accused produced 01 document in his defence and after the closing pursis was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that the facts in chief examination and in the complaint are false. The disputed cheque was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant. Section 139 of the Act 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 a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused 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 years, amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence." 8. In light of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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