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TMI Blog2025 (4) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... aints under Sections 138 and 142 of the NI Act were filed at the instance of the complainant/ appellant. It is averred that the accused/ Respondent No. 2 is known to the appellant for many years as both have their factories in the same complex in Okhla, Delhi. It is alleged that the appellant advanced a friendly loan of Rs. 5,00,000/- in cash to Respondent No. 2, in the month of April, 2015 after arranging the same from one of his friends namely- Malkait Singh. Thereafter another sum of Rs. 4,00,000/- in cash was advanced to Respondent No. 2 by the appellant on another occasion, after arranging the same from the sale of a property by his father. 4. It is alleged that Respondent No. 2 failed to repay the loan amount and after several requests made by the appellant, Respondent No. 2 provided two post-dated cheques bearing Nos. 021603 dated 08.04.2016 for Rs. 5,00,000/- and 021604 dated 06.04.2016 for Rs. 4,00,000/-, for repayment of the loan amount, however, the same were dishonored on presentation and returned unpaid with remarks 'Funds Insufficient' vide return memos dated 15.04.2016. Subsequently, upon the non-payment of the amount despite the receipt of statutory notice, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in M. Abbas Haji v. T.N. Channakeshava : (2019) 9 SCC 606 wherein it was held that the burden to explain how the cheque landed in the hands of the complainant is on the accused. 11. He submitted that the learned MM failed to consider the fact that in his reply to the statutory notice issued by the appellant, Respondent No. 2 admitted to the fact that he left "signed cheques" in his office which were stolen, therefore the question of calling a handwriting expert as a witness, does not arise. 12. He submitted that he learned MM erred in dismissing the complaint of the appellant on the ground that he is withholding documents like statements of Bank Account of Malkait Singh from whom he arranged Rs. 5,00,000/- and the Sale Deed executed by his father from whom he arranged Rs. 4,00,000/-. To buttress his argument he placed reliance on the judgement passed by the Hon'ble Karnataka High Court in V.R. Shresti v. Bhaskar P. :2019 SCC OnLine Kar 2117, to state that mere non-production of a document relating to the source of income to advance a loan, is not a sufficient ground to dismiss the complaint. 13. He further submitted that the appellant has filed an application under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering the challenge to an order of acquittal, ought to only interfere if the Court finds that the appreciation of evidence is perverse. [Ref: Rajaram v. Maruthachalam (supra)] 21. The present case, however, relates to acquittal of an accused in a complaint under Sections 138 read with 142 of the NI Act. The restriction on the power of the Appellate Court in regard to other offence does not apply with the same vigour in the offence under provisions of the NI Act which entails presumption against the accused. The Hon'ble Apex Court in the case of Rohitbhai Jivanlal Patel v. State of Gujarat : (2019) 18 SCC 106 had observed as under: "12. According to the learned counsel for the appellant-accused, the impugned judgment is contrary to the principles laid down by this Court in Arulvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] because the High Court has set aside the judgment of the trial court without pointing out any perversity therein. The said case of Arulvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] related to the offences under Sections 304-B and 498-A IPC. Therein, on the scope of the powers of the appellate court in an appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque received the said cheque in discharge of a legally enforceable debt or liability are raised against the accused. [Ref. Rangappa v. Sri Mohan:(2010) 11 SCC 441]. 23. The Hon'ble Apex Court in Rajesh Jain v. Ajay Singh : (2023) 10 SCC 148, while discussing the appropriate approach in dealing with presumption under Section 139 of the NI Act, observed the following : "54. .... Once the presumption under Section 139 was given effect to, the courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the court finds that the evidential burden placed on the accused has been discharged, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence of the accused remained consistent throughout the trial. b. Secondly, the learned MM noted that the complainant/ appellant had neither proved his financial capacity nor produced the statement of bank account of Malkait Singh, from whom he had allegedly arranged Rs. 5,00,000/-, and the sale deed executed by his father from where he has allegedly arranged Rs. 4,00,000/-, to prove the source of loan advanced to the accused. 25. Since the appellant failed to provide any cogent documentary evidence in corroboration of his testimony, the learned MM held that the defence raised by the accused is a probable one to rebut the presumption under Section 139 of the NI Act and that the complainant had failed to discharge the onus, which shifted upon him, to show the existence of a legal financial liability. 26. In the opinion of this Court, the acquittal of Respondent No. 2 in the present case is unsustainable, inter alia for the following reasons: 27. At the outset, since the execution and signatures on the cheques are not disputed, presumption under Section 138 and 118 of the NI Act is raised against the accused and in favour of the complainant. It is pertinent to note that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well. 45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441]" (emphasis supplied) 28. In the present case, the accused/ Respondent No. 2 has sought to prove his case by controverting that the cheques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately, it becomes the duty of the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence." (emphasis supplied) 32. Admittedly, Respondent No. 2 did not set up the case of financial capacity in the reply to the notice when the cheques in question got dishonoured, no such averment regarding financial ability of the appellant was also made by Respondent No. 2 in his statement under Section 313 or 315 of the CrPC. In his statement under Section 313 of the CrPC, Respondent No. 2 has denied any legal liability towards the appellant and in in his statement under Section 315 of the CrPC he has merely stated that the cheques in question have been stolen by the appellant and that he came to know about the same only when he received a message from the banker, however, nowhere in the said statements has he questioned the financial ability of the appellant. 33. Moreover, Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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