The accused in a case under Section 138 of the Negotiable Instruments Act must rebut the presumptions under Sections 118 and 139 of the Act by a preponderance of probabilities.

Headnote:
NEGOTIABLE INSTRUMENTS ACT - SECTION 138 - DISHONOUR OF CHEQUE - PRESUMPTIONS - REBUTTAL - STANDARD OF PROOF
Fact of the Case:

The complainant filed a prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act when a cheque for Rs.6,68,760/- dated 07.09.2016, alleged to be issued by the accused to the complainant in repayment of the said sum towards price of the gold ornaments, alleged to be purchased by the accused from the complainant on 09.06.2016, was dishonoured.
Finding of the Court:

The trial court and the appellate court held that the complainant successfully discharged the initial burden in the matter of transaction as well as execution of the cheque and given the benefit of presumptions in favour of the complainant. The accused failed to rebut the presumptions under Sections 118 and 139 of the N.I Act.
Issues: Whether the accused rebutted the presumptions under Sections 118 and 139 of the N.I Act.
Ratio Decidendi: The standard of proof for rebutting the presumptions under Sections 118 and 139 of the N.I Act is preponderance of probabilities. The accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions.
Final Decision: The revision petition was dismissed and the accused was directed to appear before the trial court on or before 03.02.2023 to undergo the sentence and to pay fine.

O R D E R

This revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for convenience) is at the instance of the sole accused in S.T.No.2386 of 2016 on the file of the Judicial First Class Magistrate Court-I, Sulthan Bathery.

2. Challenge in this revision petition is the veracity of the judgment of the Judicial First Class Magistrate Court-I, Sulthan Bathery, in the above case dated 18.03.2020, confirmed by the Sessions Court, Kalpetta in Crl.Appeal No.37 of 2020 dated

05.11.2022.

3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.

4. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience.

5. The complainant filed prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (`N.I Act' for short) when cheque for Rs.6,68,760/- dated 07.09.2016, alleged to be issued by the accused to the complainant in repayment of the said sum towards price of the gold ornaments, alleged to be purchased by the accused from the complainant on 09.06.2016, was dishonoured.

6. The trial court secured the presence of the accused for trial. During trial, PW1 examined and Exts.P1 to P6 were marked on the side of the complainant.

7. Thereafter, the accused was given opportunity to adduce defence evidence after questioning her under Section 313(1)(b) of Cr.P.C. Availing this opportunity, the accused herself got examined as DW1 and marked Exts.D1 to D4.

8. Trial court appraised the evidence in detail and finally found that the complainant discharged his initial burden in the matter of executing Ext.P2 cheque and therefore, benefit of presumption was given in favour of the complainant. Finally, the trial court imposed the following:

“

The accused is convicted under Section 255(2) of Cr.P.C. and she is sentenced to undergo simple imprisonment till rising of court and to pay compensation of Rs.6,68,760/- (Rupees Six lakh Sixty Eight Thousand Seven Hundred and Sixty only) to the complainant under Section 357(3) of Cr.P.C. for the offence punishable under Section 138 of the N.I.Act. In default of payment of compensation, the accused shall undergo simple imprisonment for a period of six months.”

9. When the matter was taken up in appeal before the Sessions Court, the learned Sessions Judge also confirmed the conviction and sentence.

10. In this matter, though the learned counsel for the accused attempted to upset the concurrent verdicts of conviction and the sentence imposed by the courts below by reiterating the contentions raised before the trial court, his attempt not found to be convincing. The learned counsel for the accused argued that the accused put up a specific defence case before the trial court denying purchase of gold ornaments from the complainant during 2016, while admitting purchase of gold ornaments during 2013. in connection with the marriage of her daughter on 23.11.2013. 11. Insofar as this contention is concerned, the trial court as well as the appellate court appraised this contention and found that the accused miserably failed to prove the defence case so as to rebut the presumptions under Section 118 and 139 of the Negotiable Instruments Act, available in favour of the complainant.

12. It is true that the trial court considered the contention based on Exts.D1 to D4 as well as the evidence of DW1. DW1 is none other than the accused. Although Ext.D1 was given emphasis to show payment of 3 installments towards the sale price of the gold ornaments, admittedly purchased during 2013, the accused failed to get necessary entries regarding payment entered in Ext.D1. Further it was found by the trial court that Ext.D1 could not be the sole basis to hold that the accused discharged the admitted liability. The appellate court also upheld the said finding.Exts.D2 and D3 are documents relating to the marriage of the daughter of the defacto complainant. At the same time,

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2023 Supreme(Online)(KER) 13038

The accused in a case under Section 138 of the Negotiable Instruments Act must rebut the presumptions under Sections 118 and 139 of the Act by a preponderance of probabilities.

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