IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
Bharat P. Deshpande, J.
Srishti Ashutosh Prabhu Dessai – Appellant
Versus
Dadamiyan M. Bagewadi@ Imran Mohammad Umar Bagewadi & Ors. – Respondents
Criminal Appeal No. 23 of 2015
Decided On : 03-10-2022

The presumption under Section 139 of N.I. Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond a reasonable doubt. The accused need not enter the witness box to rebut the presumption. However, such presumption of law cannot be considered as rebutted only by giving denials and suggestions. There has to be some cogent material brought on record during the evidence of the complainant and his witnesses, on the preponderance of probabilities so as to rebut such presumption.

Headnote:

N.I. Act - Discharge of Legally Enforceable Liability - 138 - 139 - 24/09/2011 - 23/11/2011 - 12,50,000 - 10,00,000 - 2,50,000 - presumption of law - rebuttable presumption - preponderance of probabilities

Fact of the Case:

The complainant advanced ?10,00,000 to the accused by way of a friendly loan to enable him to purchase a plot of land. An Agreement was executed between them dated 24/09/2011 at Belgaum wherein the accused undertook to repay the said loan without any interest, within two months and also volunteered to pay to the complainant a premium of ?2,50,000 by way of sharing the profit that the accused would derive from the said property transaction. Accordingly, the accused issued a cheque bearing No.744710 dated 23/11/2011 drawn on Karnataka Bank Ltd., Belgaum Branch amounting to ?12,50,000 in favour of the complainant towards the repayment of the said amount. On presentation of the said cheque, it was dishonoured due to "funds insufficient". The complainant informed the accused about it and then the accused requested her to represent the cheque again after 20/12/2011. The complainant then presented the cheque for realization with her bank at Panaji on 21/12/2011, however, it was again dishonoured due to insufficient funds. A legal notice dated 26/12/2011 was issued to the accused by a registered post calling upon him to make the payment of the said cheque within a period of 15 days from the date of the receipt of the said notice. The Accused received such notice on 08/01/2012, however, he neither replied nor complied with the said notice. Thus, the complaint was lodged before the learned Magistrate who on verification of the complaint issued a process against the accused.

Finding of the Court:

The learned Magistrate erred in not drawing the presumption under Section 139 of N.I. in favour of the complainant. The Agreement dated 24/09/2011 is not a contingent contract. The accused succeeded in rebutting the presumption from the cross-examination of the complainant. The accused failed to rebut the presumption under Section 139 of N.I. Act. The accused is found guilty of the offence punishable under Section 138 of the N.I. Act.

Issues: 1. Whether the learned Magistrate committed error in not drawing the presumption under Section 139 of N.I. in favour of the complainant? 2. Whether the Agreement dated 24/09/2011 is having any aspect of a contingent contract?

Ratio Decidendi: The presumption under Section 139 of N.I. Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond a reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. The accused need not enter the witness box to rebut the presumption. However, such presumption of law cannot be considered as rebutted only by giving denials and suggestions. There has to be some cogent material brought on record during the evidence of the complainant and his witnesses, on the preponderance of probabilities so as to rebut such presumption.

Final Decision: The appeal stands allowed. The impugned judgment dated 10/09/2014 in Criminal Case No.OA/75/2012 is hereby quashed and set aside. The accused/respondent No.1 herein is found guilty of the offence punishable under Section 138 of the N.I. Act. The accused is therefore sentenced to suffer Simple Imprisonment for a period of 6 months and to pay compensation of double the amount of cheque to the complainant i.e. ?25,00,000/- (Rupees Twenty Five Lakhs only), within a period of one month, failing which he shall suffer simple imprisonment for a period of three months. The accused is directed to surrender before the learned Magistrate within a period of 15 days from today. Records and proceedings shall be returned to the learned Magistrate immediately with the direction that if the accused failed to surrender within a period of 15 days, he shall take necessary recourse of law to issue a warrant for the purpose of the sentence awarded herein above. Pending application, if any, stands disposed of accordingly.