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2022 Supreme(P&H) 1881
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Jasjit Singh Bedi, J.
Santosh Devi Tyagi – Appellant
Versus
State Of Haryana & Anr. – Respondents
CRM-A-771-Ma-2018
Decided On : 19-05-2022
Mr. Parminder Singh, Advocate, for the Appellant; Mr. Parveen Kumar Aggarwal, DAG, Haryana
Headnote:
The presumption under Section 139 of the Negotiable Instruments Act, 1881 is rebuttable and the onus is on the accused to raise a probable defence. The accused can either show that the consideration and debt did not exist or that under the particular circumstances of the case the non-existence of the consideration and debt is so probable that a prudent ought to suppose that no consideration and debt existed. Further, specific evidence in defence in this regard can be lead by the accused, he can also rely on the cross-examination of the complainant and his witnesses to rebut the said presumption. It is not necessary for the accused to come in the witness box to support his defence. Further, the standard of proof for rebutting the presumption is that of preponderance of probabilities.
Fact of the Case:
The complainant/appellant has filed the present application for leave to appeal against the order of acquittal dated 01.02.2018 passed by Judicial Magistrate, 1st Class, Indri, whereby the accused-respondent has been acquitted of the charges under Sections 138 and 142 of the Negotiable Instruments Act.
Finding of the Court:
The accused/respondent has been able to rebut the presumption of there being a legally enforceable debt from the evidence/cross-examination of the complainant herself.
Issues: Whether the presumption under Section 139 of the Negotiable Instruments Act, 1881 is rebuttable and the onus is on the accused to raise a probable defence.
Ratio Decidendi: The presumption under Section 139 of the Negotiable Instruments Act, 1881 is rebuttable and the onus is on the accused to raise a probable defence. The accused can either show that the consideration and debt did not exist or that under the particular circumstances of the case the non-existence of the consideration and debt is so probable that a prudent ought to suppose that no consideration and debt existed. Further, specific evidence in defence in this regard can be lead by the accused, he can also rely on the cross-examination of the complainant and his witnesses to rebut the said presumption. It is not necessary for the accused to come in the witness box to support his defence. Further, the standard of proof for rebutting the presumption is that of preponderance of probabilities.
Final Decision: The application for grant of leave to appeal is hereby dismissed.
JUDGMENT
Jasjit Singh Bedi, J. - The applicant/appellant has filed the present application for leave to appeal against the order of acquittal dated 01.02.2018 passed by Judicial Magistrate, 1st Class, Indri, whereby the accused-respondent has been acquitted of the charges under Sections 138 and 142 of the Negotiable Instruments Act.
2. The brief facts of the present complaint are that the accused was having friendly relations with the complainant. The accused borrowed a sum of Rs.8,50,000/- from the complainant for domestic purposes and for paying of the loan of the bank. She (accused) promised to return the said amount within two months. After two months, the accused came to the house of the complainant and in order to discharge her legal liability, issued a cheque bearing No.439473 dated 30.12.2014 for a sum of Rs.8,50,000/- drawn on Oriental Bank of Commerce, Indri. Thereafter, the complainant presented the aforesaid cheque for encashment to her banker Punjab National Bank, Dhanora Jagir, Tehsil Indri, but the same was returned unpaid to the complainant as dishonoured vide return memo dated 02.01.2015 containing remarks 'Funds Insufficient'. The complainant served a legal demand notice through registered post dated 20.01.2015 upon the accused, but the payment of the dishonoured cheque was not made by the accused leading to the initiation of legal proceedings.
3. After recording preliminary evidence, vide order dated 24.02.2017 passed by the then learned Judicial Magistrate, 1st Class, Karnal, the accused was summoned to face trial for commission of an offence punishable under Section 138 of the Negotiable Instrument Act.
4. Upon finding a prima facie case against the accused, notice of accusation under Section 138 of the Negotiable Instruments Act was served upon her vide order dated 26.03.2015, to which the accused did not plead guilty and claimed trial.
5. During the course of evidence, the complainant got examined herself as CW1, who tendered her duly sworn affidavit Ex.CW1/A in evidence in which she reiterated the facts mentioned in the complaint and also tendered the following documents in evidence:-
| Ex.C1 | Cheque |
| Ex.C2 | Return memo |
| Ex.C3 | Postal receipt |
| Ex.C4 | Acknowledgment |
| EX.C5 | Legal notice |
| Ex.C8 | Copy of Reliance Live Market Technical Charts |
| Ex.C9 | Copy of Price Data for Reliance Industries on 23.07.2014 |
| Ex.C9 | Copy of Price Data for Reliance Industries on 24.07.2014 |
| Mark-CA | Copy of holding details for the financial year 2012-14 |
Thereafter, evidence of the complainant was closed by the complainant vide separately recorded statement dated 04.01.2016.
6. The statement of the accused under Section 313 Cr.P.C. was recorded, wherein, she pleaded false implication and claimed innocence. The accused opted to lead evidence in defence.
| DW1 | Devi Dayal Sharma |
| DW2 | Abhishek Verma |
And also tendered following documents in defence evidence:-
| Mark-A1 | Copy of Jamabandi of year 2008-09 |
| Mark-A2 | Copy of Ration Card |
| Mark-A3 | Copy of Birth Certificate |
| Mark-A4 | Copy of Aadhaar Card |
| Mark-A5 | Copy of Educational Certificate |
| Mark-A6 | Copy of Project Report |
| Mark-A7 | Copy of Certificate (Training (Course in Dairying/Piggery/Poultry) |
| Ex.D1 & D2 | Copies of Generation & Distribution Chart of Reliance Power |
| Ex.D3 to D5 | Certified copy of plaint & application U/s 32 Rule 2 of CPC titled Mohan Lal Vs. Manish Kumar |
| Ex.D6 | Copy of reply to application U/s 32 Rule 2 of CPC |
| Mark-X | Copy of Agreement |
| Mark-PX | Copy of application under Order 6 Rule 17 CPC |
| Mark-PY | Copy of reply to application under Order 6 Rule 17 CPC |
| Mark-PZ | Copy of reply to application under Order 32 Rule 2 CPC |
| Ex.PA | Copy of judgment dated 22.09.2008 passed by Shri Ajay Tewatia, Guardian Judge, Karnal |
| Ex.PB | Mortgaged Deed bearing Vasika No.246 dated |
