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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mr Justice Rakesh Kainthla, J
Jungsher – Appellant
Versus
Anita Devi – Respondent
JUDGMENT :
Rakesh Kainthla, J.
The present appeal is directed against the judgment dated 19.05.2010, passed by learned Judicial Magistrate, First Class, Nahan District Sirmaur, H.P (learned Trial Court), vide which the complaint filed by the appellant (complainant before learned Trial Court) for the commission of an offence punishable under Section 138 of Negotiable Instruments Act (in short ‘NI Act’) was dismissed and respondent (accused before learned Trial Court) was acquitted. (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 revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the accused had family relations with the complainant. The accused borrowed a sum of Rs.95,000/- from the complainant in December 2005. She promised to repay the amount on or before 14.03.2006. She issued a cheque bearing No. 278852 drawn on Punjab National Bank for a sum of Rs.95,000/- in the discharge of her legal liability.
The presumption of consideration for a cheque does not negate the complainant's burden to prove the existence of a legally recoverable debt, which can be rebutted by the accused.
The cheque must represent a legally enforceable debt at the time of encashment; the burden to rebut the presumption of liability lies with the accused.
The complainant must prove the existence of a legally enforceable debt in a Section 138 NI Act case, and discrepancies in testimony can undermine the presumption of consideration.
The burden of proof in Section 138 NI Act cases shifts to the complainant when the accused challenges their financial capacity, emphasizing that presumption of innocence protects the acquitted party.
Presumption of legally enforceable debt arises upon admission of cheque by the accused; failure to rebut results in liability for cheque dishonor.
Appellate court should not interfere with acquittal under Section 138 NI Act based on reliable forensic evidence disproving accused's signature on cheque, as presumption under Sections 118 and 139 re....
The presumption of consideration under Sections 118 and 139 of the Negotiable Instruments Act applies unless disproven by the accused, and the burden cannot shift excessively onto the complainant.
The presumption under Section 139 of the Negotiable Instruments Act is rebuttable; the burden shifts to the complainant to prove existence of debt when the accused raises a probable defense challengi....
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