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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RAKESH KAINTHLA, J.
M/s Sagar Katha Factory – Appellant
Versus
Jaswant Singh – Respondent
Cr. Appeal No. 215 of 2013
Decided On : 01-01-2026
The case of Sanjabij Tari v. Kishore S. Borcar (2025) 259 appears to be discussed in the context of the legal principles governing the presumption of consideration and the burden of proof in cases involving cheques and the Negotiable Instruments Act. Specifically, the judgment emphasizes that once the issuance of a cheque and the signature thereon are admitted, a presumption arises that the cheque was issued for consideration and in discharge of a debt or liability (!) (!) .
Furthermore, the court highlights that this presumption is rebuttable, and the burden shifts to the accused to establish a probable defence to disprove the liability (!) (!) . The decision underscores that the courts should not require the complainant to prove the source of funds or the capacity to pay at the initial stage, as the statutory presumption already supports the existence of a debt or liability (!) (!) .
In the context of the specific case, the judgment notes that the presumption in favor of the complainant was not properly rebutted by the accused, and the evidence on record supported the conclusion that the cheque was issued in discharge of a debt. The case reinforces the principle that the presumption under the relevant sections of the NI Act is a significant factor in determining the guilt or innocence, and courts should carefully consider whether the accused has successfully rebutted this presumption with credible evidence (!) (!) .
Overall, the case emphasizes the importance of the presumption of consideration upon the issuance and signing of a cheque and clarifies that the burden of proof lies with the accused to establish a probable defence to rebut this presumption, especially in proceedings under the Negotiable Instruments Act.
| Table of Content |
|---|
| 1. trial acquitted for unproved debt, agreement. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. arguments on presumption, proof, acquittal interference. (Para 7 , 9 , 10) |
| 3. interfere with perverse acquittals in ni act. (Para 11 , 12 , 13 , 14 , 15) |
| 4. five ingredients constitute section 138 offence. (Para 16) |
| 5. presumption of debt on admitted cheque signature. (Para 17 , 18 , 19 , 20) |
| 6. unproved agreement yields to statutory presumption. (Para 21 , 22 , 23 , 24) |
| 7. no adverse inference absent account statements. (Para 25 , 26 , 27 , 28) |
| 8. accused must evidence-rebut presumption of liability. (Para 29 , 30 , 31 , 32 , 33) |
| 9. precedent inapplicable without contradictory evidence. (Para 34) |
| 10. insufficient funds caused cheque dishonour. (Para 35) |
| 11. refused notice deemed validly served. (Para 36 , 37 , 38) |
| 12. acquittal perverse; convict under section 138. (Para 39 , 40 , 41) |
JUDGMENT :
RAKESH KAINTHLA, J.
1. The present appeal is directed against the judgment dated 08.03.2013 passed by learned Chief Judicial Magistrate, Sirmaur District at Nahan (the learned Trial Court), vide which the respondent (accused before the learned Trial Court) was acquitted of the accusation for which he was being tried. (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 Negotiable Instruments Act, 1881 (in short ‘NI’ Act). It was asserted that the complainant is a partnership concern and is engaged in the manufacturing of Katha. The accused agreed to supply the Khair wood. The complainant advanced Rs.27,57,000/- to the accused on different dates, but the accused supplied the Khair wood worth Rs.22,07,000/- to the complainant. An amount of Rs.5,50,000/- was due from the accused. The accused admitted his liability to pay Rs.5,50,000/- to the complainant and undertook to supply Khair wood to the complainant. The accused failed to honour his promise to supply the Khair wood despite repeated requests. He issued a cheque of Rs.5,50,000/- to the complainant drawn on HP State Co-operative Bank Ltd., Bilaspur. The complainant presented the cheque to its bank for collection, but it was dishonoured with an endorsement ‘insufficient funds’. The complainant served a notice upon the accused. The accused refused to receive the notice, and it was returned undelivered. The accused also failed to repay the amount to the complainant. Hence, the complaint was made against the accused for taking action as per the law.
3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried.
4. The complainant examined Rakesh Kumar (CW1), Punit Mahajan (CW2) and Prince Kumar (CW3) to prove its complaint.
5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the complainant’s case in its entirety. He stated that Khairwood was supplied to the complainant as per the agreement, and the complainant was liable to pay Rs.9,00,000/- to him. He claimed that he had issued a blank security cheque in the year 2005 to the complainant. The witnesses were interested, and had falsely deposed against the accused. He was not liable to pay any money to the complainant, and a false complaint was made against him. He stated that he wanted to lead the evidence, but subsequently, a statement was made on his behalf on 28.09.2012 that no evidence was to be led.
6. Learned Trial Court held that the complainant failed to produce the statement of accounts to corroborate its version. The agreement (Ext. PX) was not proved as per the law. No scribe or witness to the agreement was examined before the Court. The state
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....
Presumption under Section 139 NI Act shifts burden to accused to rebut by probable defence; trial court erred in requiring complainant to prove debt, rendering acquittal perverse in appeal.
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.
Presumption under Section 139 of the Negotiable Instruments Act requires the accused to present credible evidence to rebut the holder's claim of legal liability regarding the cheque issued.
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 obligates the accused to provide credible evidence to rebut the claim of issuance of a cheque for a legally enforceable debt.
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.
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 i....
The presumptions under sections 138 and 139 of the NI Act favor the holder, shifting the burden to the accused to rebut the claims of liability.
The presumption of consideration under Section 139 of the N.I. Act shifts the burden to the accused to prove non-existence of debt, which was not done in this case.
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