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SANJIV KHANNA, J. K. MAHESHWARI
JAIN P. JOSE – Appellant
Versus
SANTOSH – Respondent
ORDER :
1. Leave granted.
2. In our opinion, the impugned judgment passed by the High Court of Kerala, Ernakulam dated 24.07.2015, dismissing the appeal preferred by the appellant – Jain P. Jose, against the judgment of the trial court dated 17.03.2015, cannot be sustained. An order of remand is required.
3. The judgment under challenge reasons that the appellant – Jain P. Jose had admitted that the entries/details in the cheque bearing No. 054984 dated 02.02.2010 for a sum of Rs.9,32,000/- (Rupees Nine Lakhs Thirty Two Thousand Only) drawn on South Malabar Gramin Bank, Olarikkara Branch, Thrissur, were not in the hand of the accused/respondent-Santosh. Hence, the presumption under Sections 118 and 139 of Negotiable Instruments Act, 18811[For short, the N.I. Act.] does not arise. Accordingly, the High Court agreed with the reasoning given by the trial court that the appellant – Jain P. Jose, was not able to adduce sufficient evidence that he was in a position to advance a loan of Rs. 9 lakhs to the respondent. The High Court relied on the judgment of this Court in “John K. Abraham v. Simon C. Abraham”, (2014) 2 SCC 236.
4. It is an accepted and admitted position that the respondent acc
The presumption under Section 139 of the N.I. Act operates in favor of the holder of a cheque, and the burden is on the accused to disprove the existence of a legally recoverable debt or liability.
Dishonour of cheque – Presumption of debt is a rebuttable presumption and onus is on accused to raise probable defence – Standard of proof for rebutting presumption is that of preponderance of probab....
Dishonour of cheque – Accused had to prove by cogent evidence that there was no debt or liability.
Point of Law : Dishonour of Cheque – Acquittal under - complainant has failed to prove even the execution of the cheque since his very specific case that it was a cheque written using a pen in his pr....
The complainant must establish the existence of a legally enforceable debt to sustain a conviction under Section 138 of the Negotiable Instruments Act.
Dishonour of cheque – Whereas prosecution must prove guilt of an accused beyond all reasonable doubt, standard of proof so as to prove a defence on part of accused is preponderance of probabilities.
The presumption under Section 139 of the NI Act is rebuttable, transferring the burden to the complainant if sufficient evidence creates doubt in the case.
The presumption under Section 139 of the Negotiable Instruments Act is mandatory, placing the burden on the accused to rebut the existence of a legally enforceable debt.
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