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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Jasjit Singh Bedi, J.
Ashok Kumar Soni – Appellant
Versus
Rajinder Bahadur @ Jinder – Respondent
CRM-A-486-2021
Decided On : 07-07-2022
The presumption of consideration under Section 118(a) of the Negotiable Instruments Act, 1881 is rebuttable. The burden of proving that a cheque had not been issued for a debt or liability is on the accused. The accused can prove the non-existence of consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
Fact of the Case:
The accused had issued a cheque to the complainant in discharge of a debt. The cheque was dishonoured by the bank due to insufficient funds. The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. The Trial Court acquitted the accused. The complainant filed an appeal against the acquittal.
Finding of the Court:
The Court held that the presumption of consideration under Section 118(a) of the Negotiable Instruments Act, 1881 is rebuttable. The burden of proving that a cheque had not been issued for a debt or liability is on the accused. The accused can prove the non-existence of consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. In the present case, the accused had been able to rebut the presumption of consideration and the view taken by the Trial Court while acquitting the accused is a reasonable view based on the evidence on the record and cannot be said to be perverse and as such is not required to be interfered with.
Issues: Whether the presumption of consideration under Section 118(a) of the Negotiable Instruments Act, 1881 is rebuttable.
Ratio Decidendi: The presumption of consideration under Section 118(a) of the Negotiable Instruments Act, 1881 is rebuttable. The burden of proving that a cheque had not been issued for a debt or liability is on the accused. The accused can prove the non-existence of consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
Final Decision: The Court dismissed the appeal and upheld the acquittal of the accused.
JUDGMENT
Jasjit Singh Bedi, J. - The applicant/appellant has filed the present application for grant of leave to appeal against the order of acquittal dated 06.01.2020 passed by Judicial Magistrate, 1st Class, Jalandhar, whereby the accusedrespondent has been acquitted of the charges under Section 138 of the Negotiable Instruments Act, 1881.
2. The brief facts of the case are that the accused/respondent had friendly terms with the complainant. Taking the benefit of the same, he sought a friendly loan of Rs.30,000/- from the complainant and the complainant in view of the said friendly relations advanced the accused a sum of Rs.30,000/- in the month of July, 2018 and the accused assured the complainant that the accused would return the said amount in some time. The accused in order to discharge his legal enforceable liability and to repay the amount of the said friendly loan issued a cheque bearing No.000019 dated 10.09.2018 for Rs.30,000/- drawn on HDFC Bank, Ground Floor Green City, Mithapur Road, Alipur, Tehsil and District Jalandhar from account bearing No.50100202842203 being maintained and operated by the accused in favour of the complainant. At the time of issuing the above said cheque, the accused assured the complainant that the cheque in question would be honoured on its presentation for encashment. As per such assurance of the accused, the complainant accepted the said cheque under bonafide belief and faith and presented the same for encashment through his banker Oriental Bank of Commerce, Mithapur Jalandhar, but the same was returned as dishonoured by the banker of the accused along with memo dated 12.09.2018 containing the remarks 'Funds Insufficient'. After receiving the above said dishonoured cheque from his bank, the complainant immediately approached the accused and narrated about the fate of the cheque, then the accused requested the complainant to present the cheque in question again in the month of December, 2018 for encashment and the complainant reposed faith in the accused and presented the said cheque for encashment through his banker, but the complainant again was surprised to know that the cheque had been dishonoured with the remarks 'Funds Insufficient' vide memo dated 03.12.2018, meaning thereby that there was no sufficient funds in the account of the accused to meet the payment of the cheque in question on the relevant dates when the cheque in question was presented for encashment. The cheque in question along with memo was got received by the complainant through his banker later on. On the receipt of the said dishonoured cheque along with memo, the complainant got issued/served a legal notice dated 06.12.2018 upon the accused through his counsel Sh. Rohit Gambhir, Advocate, through registered A.D. post. In the said notice, the accused was asked to pay the amount of the dishonoured cheque in question i.e. Rs.30,000/- within fifteen days from the receipt of the legal notice. Since no payment was made the complaint came to be filed.
3. In preliminary evidence, statement of complainant-Ashok Kumar Soni as CW-1 was recorded in which the complainant tendered into evidence his duly sworn affidavit Ex.CA reiterating the facts as mentioned in his complaint. He also tendered cheque Ex.C1, memos Ex.C2 and Ex.C3, legal notice Ex.C4 and postal receipt Ex.C5 and complainant closed his preliminary evidence. Thereafter, the accused was ordered to be summoned to face trial under Section 138 of Negotiable Instruments Act vide order dated 08.01.2019.
4. Thereafter, the statement of accused Rajinder Bahadur @ Jinder under Section 313 Cr.P.C. was recorded, wherein all the incriminating evidence appearing against him was put to him but he pleaded his false implication. He stated that he is innocent. He had been falsely implicated in the present case. He does not know the complainant. He had no friendly relations with the complainant as alleged by the complainant in his complaint. He never issued the cheque in question in fav
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.
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