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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Vinod S. Bhardwaj, J.
Tarsem Chand – Appellant
Versus
Nirbhai Singh Vashisht – Respondent
CRA-AS-150 of 2022 (O&M)
Decided On : 25-07-2022
Cheque Dishonour - Presumption of Consideration and Debt - Rebuttal - Standard of Proof - Appeal Against Acquittal - Scope and Interference.
Fact of the Case:
The complainant, a police officer, filed a complaint against the accused for dishonoring a cheque issued in discharge of a loan of Rs. 1,00,000/-. The accused denied the loan and claimed that the complainant had obtained three/four signed blank cheques from her for the purpose of arranging a loan from a private money lender. The JMIC acquitted the accused, holding that the complainant had failed to prove his case beyond a reasonable doubt.
Finding of the Court:
The court held that the presumption of consideration and debt under Sections 118 and 139 of the Negotiable Instruments Act, 1881 is rebuttable and the onus is on the accused to raise a probable defense. The standard of proof for rebutting the presumption is that of preponderance of probabilities. The court further held that in an appeal against acquittal, the High Court has wide powers to review the evidence and come to its own conclusion, but it should be cautious and give due weight to the findings of the trial court. The court found that the JMIC had not committed any illegality, perversity, or mis-appreciation of evidence in acquitting the accused and dismissed the appeal.
Issues: 1. Whether the presumption of consideration and debt under Sections 118 and 139 of the Negotiable Instruments Act, 1881 is rebuttable and the onus is on the accused to raise a probable defense? 2. What is the standard of proof for rebutting the presumption of consideration and debt? 3. What is the scope of interference by the High Court in an appeal against acquittal?
Ratio Decidendi: 1. The presumption of consideration and debt under Sections 118 and 139 of the Negotiable Instruments Act, 1881 is rebuttable and the onus is on the accused to raise a probable defense. 2. The standard of proof for rebutting the presumption of consideration and debt is that of preponderance of probabilities. 3. In an appeal against acquittal, the High Court has wide powers to review the evidence and come to its own conclusion, but it should be cautious and give due weight to the findings of the trial court.
Final Decision: The appeal was dismissed, and the judgment of acquittal passed by the JMIC was affirmed.
JUDGMENT
Vinod S. Bhardwaj, J. (Oral) - The instant appeal has been filed by the appellant-complainant aggrieved of the judgment dated 10.10.2017 passed by the Judicial Magistrate Ist Class, Sangrur, in Complaint No.207 dated 14.06.2016 titled Tarsem Chand Vs. Nirbhai Singh Vashisht.
2. Briefly summarized the facts of the case are as under:-
(1.) 'The complaint was registered on the allegations by the complainant that the accused had borrowed a sum of Rs. 1,00,000/-from the complainant in cash in the month of January 2016 as the accused was in dire need of money. The accused to discharge his legal liability, issued cheque No. 531753 dated 20.03.2016 for Rs. 1,00,000/- drawn on State Bank of India, branch Industrial Area, Sangrur, to the complainant. On presentation of the said cheque for encashment, the same was dishonoured and returned with the remarks 'Funds Insufficient' vide memo dated. 25.3.2016. Thereafter, the complainant issued a legal notice dated 28.3.2016, but the accused failed to clear the account of the complainant.
(2.) After going through the complaint and affidavit on record, produced by the complainant, the accused was ordered to be summoned to face trial under Section 138 of the Act.
(3.) To prove its case, the complainant himself stepped into the witness box as CW1 and tendered into evidence his duly sworn affidavit Ex. CW1/A as part of his examination in chief, wherein he deposed on the lines of the complaint. He further proved the original cheque Ex. C1, memo dated 25.8.2016 Ex.C2, memo dated 19.4.2016 Ex.C3, legal notice dated 18.5.2016 Ex. C4, and postal receipt Ex.C5.
(4.) The accused was examined under Section 313 Code of Criminal Procedure wherein all the incriminating circumstances appearing against the accused were Tarsem Chand Vs. Nirbhai singh 3 put to him. He denied all the allegations leveled against him and pleaded that he is innocent. In the month of May 2015, the complainant had borrowed a sum of Rs.4,00,00/- from his wife Manjit Kaur as he was in dire need of money for personal purpose and on 27.05.2015 his wife had given Rs. 4,00,000/- to the complainant in good faith being neighbourer for the last many years after arranging the same. When his wife demanded back the said amount from the complainant, then he deposited the amount of Rs. 2,45,000/- out of Rs.4,00,000/- in her account bearing No. 915010021867503. When she asked for the remaining amount of Rs. 1,55,000/- from the complainant, then he showed his inability to repay the remaining amount and further told her that if she was in dire need of money then he could arrange a loan of Rs. 1,55,000/- for her from some private money lender and obtained three/four signed blank cheques bearing no. 138377, 138378 and 38379 drawn on Axis Bank, Sangrur alongwith other necessary documents in good faith for the purpose of arranging the loan. The cheques were bearing his and his wife's signatures. The complainant has misused the instant cheques. He has never borrowed any loan from the complainant nor has he given any cheque No. 531753 dated 20.3.2016 for a sum of Rs. 1,00,000/- in favour of the complainant to discharge his legal liability.
(5.) In defence evidence, the accused examined DW1 Ankush Mittal, BDE of Axis Bank. He has brought the summoned record and proved the statement of account of Manjit Kaur as Ex. D7. Thereafter, the accused tendered copy of the application dated 30.3.2016 Ex. D1, statement of Tarsem Singh dated 17.4.2016 mark A, copy of statement of Manjit Kaur dated 02.5.2016 mark B, reply to the legal notice dt. 18.5.2016 as Ex. D2, postal receipt dated 27.5.2016 Ex.D3, certified copy of complaint u/s 138 NI Act of 01.4.2016 Ex. D4, statement of the complainant Ex. D5, complaint u/s 138 of NI act bearing no. 273 dated 29.11.2016 Ex. D6, certified copy of FIR NO. 339 dated. 25.9.2016 Ex. D8, certified copy of complaint titled as Baldev singh Vs Tarsem Chand Ex.D9, certified copy of complaint titled as Tarsem Chand Vs. Jagdish Parkash Ex.D
The presumption under Section 139 of the Negotiable Instruments Act is rebuttable and the accused can discharge the burden of proof by raising a probable defense.
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 ....
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