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2022 Supreme(Raj) 2384

PUSHPENDRA SINGH BHATI
Yashpal Singh Bhati – Appellant
Versus
State Of Rajasthan – Respondent


Advocates appeared:
H.P. Rankawat, Advocate, for the Appellant
Mukhtiyar Khan, PP and Naresh Khatri, Advocates, for the Respondents

Judgement Key Points

Based on the provided legal document, the key points are as follows:

  1. The judgment emphasizes that under the Negotiable Instruments Act, once the execution of a cheque is admitted, there is a presumption that the cheque was issued for the discharge of a debt or liability. However, this presumption is rebuttable, and the burden is on the accused to raise a probable defense by preponderance of probabilities [p_25.2][p_25.3].

  2. The accused is not required to testify or enter the witness box to support their defense; they can discharge their evidentiary burden through materials already on record. The standard of proof for rebutting the presumption is lower than beyond a reasonable doubt, relying instead on preponderance of probabilities [p_25.4][p_25.5].

  3. The court highlights that the presumption under Section 139 does not extend to the existence of a legally recoverable debt; it only presumes that the cheque was issued for the discharge of any debt or liability [p_25.1].

  4. The burden of proof to establish the existence of a legally enforceable debt or liability lies with the complainant. The complainant must prove that the debt was subsisting at the time of the cheque's issuance and that the cheque was issued towards its discharge (!) (!) .

  5. The evidence must establish that the cheque was "drawn" or "executed" by the accused, meaning the accused either created or signed the cheque. Mere possession or the presentation of the cheque is insufficient without proof of drawing or execution by the accused (!) (!) .

  6. If the prosecution relies on circumstantial evidence to prove the drawing of the cheque, it must establish each circumstance convincingly, leading to the irrefutable conclusion that the accused drew the cheque (!) (!) .

  7. The court underscores that the initial and fundamental step for the complainant is to prove that the cheque was issued in discharge of a legally enforceable debt. Failure to prove the act of drawing the cheque or the existence of a debt results in the acquittal of the accused (!) .

  8. The judgment confirms that the accused has a constitutional right to remain silent and is not obliged to testify. The standard of proof and the approach to evidence differ between the prosecution and the defense (!) .

  9. The court found that the respondent successfully established a probable defense, and the complainant failed to substantiate the allegations. The evidence indicated that the respondent did not in fact issue the cheque to the complainant for a debt, but that the cheque was obtained through other circumstances, including misuse or misappropriation (!) (!) .

  10. The final decision dismisses the appeal, affirming that the lower court's judgment was well-founded based on the evidence and circumstances, and there is no legal infirmity warranting interference (!) (!) .

In summary, the case underscores the importance of the complainant's burden to prove the existence of a legally enforceable debt and the proper issuance of the cheque by the accused. It also clarifies that the accused's burden is limited to raising a probable defense and that the presumption of liability can be rebutted with sufficient evidence on record.


JUDGMENT

Pushpendra Singh Bhati, J. - In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Leave to Appeal under Section 378 (4) Cr.P.C. has been preferred claiming the following reliefs:

"1. This leave to appeal may kindly be granted and the memo of leave may kindly be treated as memo of appeal.

      2. The Judgment dated 28.11.2018 passed by the learned Special Metropolitan Magistrate, NI Act Cases, Pali, in Crl Original Case No. 1525/2017 may kindly be set aside and the respondent be convicted for the offence U/s 138 Negotiable Instruments Act as charged by allowing the complaint of the complainant as prayed."

      3. The brief facts of the case as placed before this Court by the learned counsel for the appellant are that the appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the respondent No. 2 before the learned Court below, when the cheque issued by the respondent No. 2, bearing cheque no. 657728, dated 10.2.2017 for a sum of Rs. 9,55,

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