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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA, J.
Sanjay Sankhyan - Appellant.
Versus
Krishan Kumar Katoch - Respondent.
Cr. Appeal No. 196 of 2012
Decided on : 26-02-2024
Negotiable Instruments Act - Acquittal under Section 138 - 138 - Summary of Acts and Sections: The court discussed the provisions of Section 138 of the Negotiable Instruments Act and the presumption of discharge of legal liability upon issuance of a cheque. The court highlighted the burden of proof on the accused to rebut the presumption and the admissibility of the accused's defense plea. The judgment emphasized the importance of cross-examination in challenging witness testimony and the need for a probable defense to rebut the presumption. The court also referred to various judgments to support its interpretation of the legal provisions.
Fact of the Case:
The accused issued a post-dated cheque to the complainant, which was returned due to 'exceeds arrangement'. The complainant filed a complaint under Section 138 of the NI Act. The accused denied the allegations and claimed that the cheque was issued for purchasing electrical goods, which were not supplied by the complainant.
Finding of the Court:
The court found that the accused did not dispute the issuance of the cheque and the fact that the cheque was filled by him. It emphasized the presumption under Section 139 of the NI Act that the cheque was issued in discharge of legal liability. The court accepted the defense plea that the cheque was issued for purchasing electrical goods, as it was not challenged during cross-examination.
Issues: The main issue was whether the accused successfully rebutted the presumption of discharge of legal liability attached to the cheque issued under Section 138 of the NI Act.
Ratio Decidendi: The court held that the accused's defense plea was not an afterthought and was admissible, as it was not challenged during cross-examination. The court emphasized the importance of cross-examination in challenging witness testimony and the need for a probable defense to rebut the presumption under Section 139 of the NI Act.
Final Decision: The court dismissed the appeal and upheld the judgment of the Trial Court, emphasizing that no interference was required with the acquittal of the accused under Section 138 of the NI Act.
JUDGMENT :
Rakesh Kainthla, J
The present appeal is directed against the judgment dated 21.10.2011, passed by learned Judicial Magistrate First Class (JMFC) III, Shimla, vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments (NI) Act. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the accused borrowed Rs.52,000/- from the complainant in June 2006 for his personal needs. The accused issued a post-dated cheque (Ex.CW-1/A) in the discharge of his legal liability. The complainant presented the cheque before his bank; however, it was returned with the endorsement ‘exceeds arrangement’. The complainant served a notice (Ex.CW-1/C) upon the accused; however, the accused failed to pay the amount despite the receipt of the notice. Hence, the complaint was filed for taking action against the accused as per the law.
3. Learned Trial Court found sufficient reasons to summon the accused for the commission of an offence punishable under Section 138 of the NI Act. When the accused appeared, a notice of accusation was put to him. The accused pleaded not guilty and claimed to be tried.
4. The complainant examined himself (CW-1), Shankar Lal (CW-2), Manohar Lal (CW-3), Swaroop Sharma (CW-4) and Puran Chand (CW-5).
5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the complainant’s case in its entirety. He examined Puran Chand (DW-1) and himself (DW -2) in defence.
6. Learned Trial Court held that the issuance of the cheque was not disputed. There is a presumption that a cheque was issued in discharge of legal liability but this presumption is rebuttable. The statement of Puran Chand Thakur (DW-1) shows that the accused had ordered the electricity goods from the complainant. He issued a cheque towards the payment of the goods. The goods were not supplied. The defence evidence rebutted the presumption of consideration attached to the cheque. Resultantly, the accused was acquitted.
7. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed. It has been asserted that the learned Trial Court misconstrued the provisions of the NI Act. The accused admitted the issuance of the cheque and there is a presumption that the cheque was issued in discharge of the legal liability. This presumption was duly supported by the evidence of the complainant. Learned Trial Court ignored the evidence of the complainant. The statement of Puran Chand (DW-1) was not satisfactory. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
8. I have heard Mr. Alok Ranjan, learned counsel for the appellant-complainant and Ms. Heena Chauhan, learned counsel for the respondent-accused.
9. Mr. Alok Ranjan, learned counsel for the appellant-complainant submitted that the learned Trial Court did not properly appreciate the material placed before it. There is a presumption that the cheque is issued in discharge of legal liability and the burden is upon the accused to rebut the presumption by leading satisfactory evidence. The version that the accused had purchased electrical goods from the shop of the complainant was propounded for the first time by examining Puran Chand (DW-1). This plea was never taken in the statement recorded under Section 313 Cr.P.C. and could not be taken subsequently. He relied upon the judgment of Prem Chand Vs. State of Maharashtra 2023 (5) SCC 522 in support of his submissions.
10. Ms Heena Chauhan, learned counsel for the accused-respondent supported the judgment of the learned Trial Court and su
The main legal point established in the judgment is the presumption under Section 139 of the Negotiable Instruments Act, which shifts the burden of proof onto the accused to rebut the presumption of ....
The judgment emphasizes the principles of presumption in favor of the accused under Section 139 of the NI Act and the requirement of thorough scrutiny before reversing an order of acquittal.
The presumption under Section 139 of the NI Act that a cheque is issued for discharge of a debt or liability unless proven otherwise, and the accused's burden to raise a probable defense to rebut the....
The presumption of liability under the NI Act is rebuttable, and the burden of proof lies on the complainant to establish the existence of a legally enforceable debt.
Admission of cheque execution triggers Sections 118/139 NI Act presumptions of debt; burden on accused to rebut by evidence; trial acquittal ignoring presumption and shifting onus to complainant is p....
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.
Presumption under Section 139 NI Act that cheque is for debt discharge holds unless rebutted by preponderance of probabilities; trial acquittal reversed for perversely ignoring defence witness confir....
The presumption under Section 139 of the NI Act mandates that a cheque is presumed to be issued for discharge of a debt unless the accused proves otherwise.
The main legal point established in the judgment is the significance of the accused raising a probable defense to rebut the presumption under Section 139 of the N.I. Act, and the requirement for the ....
The presumption in favor of the complainant under the N.I. Act is rebuttable, and the standard of proof required to prove a defense in a criminal case is preponderance of probabilities.
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