Madhya Pradesh High Court
Mohd. Azaz Sheikh vs Arun on 22 April, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
CRR-681-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 22nd OF APRIL, 2025
CRR No.681 of 2022
MOHD. AZAZ SHEIKH
Versus
ARUN
................................................................................................................................................
Appearance :
Shri Deepak Awasthi - Advocate for the applicant.
None for the respondent - though served.
................................................................................................................................................
Reserved on : 07.04.2025
Pronounced on : 22.04.2025
ORDER
Since the record has come and this revision is of the year 2022, therefore, looking to the issue involved in this case, the revision is finally heard.
2. This revision is under Section 397/401 of the Code of Criminal Procedure assailing the validity of the judgment dated 01.02.2022 passed by the First Additional Sessions Judge, District Chhindwara, in Criminal Appeal No.129/2018 whereby the appellate court allowed the appeal preferred against the judgment passed in Criminal Case No.2931/2015 by the Judicial Magistrate First Class, Chhindwara, allowing the complaint made under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') found the Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 2 CRR-681-2022 non-applicant guilty and awarded sentence of 6 months' RI under Section 138 of NI Act and also awarded compensation to the tune of Rs.3,30,000/- in view of Section 357(3) of Cr.P.C. with default stipulation.
3. Few facts, which are relevant for consideration in this revision are that;
(3.1) The applicant/complainant has filed a complaint under Section 200 of Cr.P.C. for initiating proceeding under Section 138 of NI Act against the non-applicant stating therein that he has given a total loan of Rs.3,00,000/- in parts on different dates to the non-applicant and despite making efforts, the said amount was not repaid and the non-applicant issued a cheque bearing No.005570 dated 12.02.2015 payable to the Central Bank of India, Chhindwara.
(3.2) The cheque was placed before the Corporation Bank Branch at Chhindwara, for enchashment but it was returned unpaid with an endorsement 'insufficient funds'.
(3.3) A legal notice was also issued to the non-applicant but the amount was not repaid and in a complaint, the JMFC recorded the evidence and found the non-applicant guilty of committing an offence under Section 138 of NI Act, and also awarded compensation to the tune of Rs.3,30,000/-. A sentence was awarded for six months RI and further RI for two months in case the amount of compensation is not paid.
(3.4) An appeal was preferred against the said judgment and the Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 3 CRR-681-2022 appeal was allowed by the appellate court vide the impugned judgment dated 01.02.2022 acquitting the non-applicant and dismissed the complaint. Ergo, the instant revision is preferred assailing the validity of the said judgment and sentence passed by the appellate court dismissing the complaint reversing the judgment passed by the trial court.
4. In view of the facts narrated in the impugned judgment and considering the defence taken by the non-applicant, the appellate court has observed that the applicant/complainant and the non-applicant both are known to the each other and the complainant is a junk dealer. The non-applicant was also running a monthly BC and in the said business, he often needed money and as such, he has taken loan from the complainant and total summed up to Rs.3,00,000/-. It is assured by the non-applicant that he would repay the said amount by December, 2014 but he failed to do so and, therefore, after persuasion, the non-applicant issued a cheque in favour of the complainant from his account in Central Bank of India, Branch Narsingpur Road, Chhindwara. The cheque was bearing registration No.005570 dated 12.02.2015 and it was placed for encashment by the complainant to the bank i.e. the Corporation Bank, Branch Chhindwara but that cheque was dishonoured and returned back with an endorsement that there was no sufficient funds in the accounts of the non-applicant and a memo dated 14.02.2015 was forwarded to the Corporation Bank, Chhindwara.
5. A notice for recovery of the amount was also issued by the complainant on 28.02.2015 through his counsel to the non-applicant and that notice was received on 02.03.2015 but the cheque amount was not Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 4 CRR-681-2022 repaid in the given time and thereafter, a complaint under Section 138 of NI Act was filed.
6. In the statement of Section 313 of Cr.P.C., the non-applicant/accused has taken a defence that he is innocent and he never took any loan from the applicant/complainant and the cheque giving rise for initiating the proceeding under Section 138 of NI Act, has never been issued against any legally enforceable liability. Although, it was stated that the non-applicant lost his bag, in which the said cheque was also there.
7. The trial court considering the statement of the complainant and his cross-examination in which he has produced Ex.P-2 i.e. memo issued by the bank which did not contain any seal of the issuing bank, has observed that the complainant did not produced any slip so as to substantiate that Ex.P-1 (Cheque) has been presented in his bank for encashment.
8. It is also noticed by the trial court that the complainant in his complaint has not specified as to on what date what amount has been taken as loan by the non-applicant. The total amount of loan i.e. Rs.3,00,000/- was to be repaid in three installments; first installment was of Rs.1,50,000/-, second was Rs.1,00,000/- and the third one was of Rs.50,000/-. The non-applicant/accused himself appeared in the court as a defence witness and he has stated that he is not very much familiar with the complainant, although he has taken a defence that he lost his cheque book from his vehicle when he found that his cheque book and bill book have been lost, then he made a report to the Superintendent of Police on 16.02.2015 and that written complaint was produced as Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 5 CRR-681-2022 Exhibit-D/1 and he has also given a written complaint to the bank manager of the concerning branch where he had his account and also apprised the bank about the loss of his cheque book and requested for the stop payment of cheques from No.5560/5562 to 5570 and that complaint made to the bank is Exhibit-D/2. A written complaint dated 09.02.2015 was also made to the Police Chowki Dharamchowkdi and that complaint is also produced as Exhibit-D/3.
9. He has also stated that the notice isssued by the complainant was received by him and he has also submitted a reply to the said notice stating that he has not issued any cheque to the complainant on 12.02.2015 and also denied about taking any loan from him. In his cross-examination, he has stated that the cheque book was lost on 09.02.2015 but not on 08.02.2015 and the document Exhibit-D/3 was prepared by his brother and he signed the same even without examining the recital of that document and submitted the same to the Incharge of Police Chowki and he has also informed that along with the cheque book a bill book with regard to purchase made from the market has also been lost and that had no value and therefore, no complaint with that regard was made.
10. The trial Court after microscopic scrutiny of the statement of the non-applicant has finally observed that since the signature was not denied by the non-applicant over the document i.e. Exhibit-P/1, therefore, presumption as per Section 139 of NI Act, has been drawn in favour of the complainant. The court has observed that in view of the presumption made under Section 139 of NI Act, it would be presumed that the cheque was issued for legally enforceable liability. However, Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 6 CRR-681-2022 according to the trial Court that presumption was rebuttable and it was the duty of the non-applicant to rebut the presumption substantiating that the cheque Exhibit-P/1 was not issued for any legally enforceable liability. The court has found that as per Section 118 of NI Act, the accused had to rebut the presumption at initial stage and after appreciating the documents produced by the non-applicant in his defence, the court came to the conclusion that the non-applicant failed to rebut the presumption as has been drawn in favour of the complainant. The trial court, therefore, has finally observed that the non-applicant could not produce sufficient evidence to rebut the presumption and as such, complaint was allowed.
11. The appellate court although has observed that since the non- applicant has not denied his signature over the cheque, therefore, presumption as per Section 139 of NI Act, goes in favour of the complainant unless it is rebutted. Both the courts have observed that the presumption as per Section 118 of NI Act, would also go in favour of the complainant unless it is rebutted. Although, the appellate court has given a new dimension to the case and scrutinized the financial capacity of the complainant and found that it was not possible for him to provide loan of Rs.3,00,000/- to the non-applicant. The appellate court has also observed that the non-applicant had taken a stand from very inception that the cheque in question was lost and that was being misused and according to the appellate court, it was not a story prepared by the non- applicant after filing a complaint or it is not an afterthought. The court has also observed that the intimation given by the non-applicant to the bank and also found that the report made to the police prior to the date mentioned in the cheque i.e. 12.02.2015.
Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 7CRR-681-2022
12. In regard to the rebuttal or to prove the defence, the appellate court has observed that though signature over the cheque was not denied but it is clear that the same was issued on 12.02.2015 and the complaint was made to the police prior to the said date i.e. 09.02.2015 and this intimation was also given to the bank and as such, the finding given by the court below was according to the appellate court erroneous and the trial court according to the appellate court failed to consider that the presumption was sufficiently rebutted by the non-applicant by adducing cogent evidence.
13. Now, on the basis of submissions made by the counsel for the applicant, this court has to consider whether in the present case presumption of Sections 139 and 119 of NI Act, has been rebutted by the non-applicant or not. It is to be seen whether the trial court has rightly observed about not rebutting the presumption or it is the appellate court which has rightly observed that the presumption has rightly been rebutted.
14. I have seen judgments of both the courts below and also examined the record, the statement of the witnesses and the documents produced by them.
15. Both the courts undoubtedly have rightly observed that presumption as per Sections 139 and 118 would go in favour of the complainant. The documents were filed by the non-applicant i.e. complaint to the police on 09.02.2015 and intimation to the bank about missing of cheque book. Although, in the examination, the non- applicant in paragraph-8, which is material, has stated as under:-
Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 8CRR-681-2022 "8. यह कहना गलत है कि मैरे द्वारा प्रदर्श डी० 2 का दस्तावेज बाद में फर्जी तरीके से बनाया गया है। यह कहना सही है कि जब भी बैंक में स्टाप पेमेंट के लिए कोई आवेदन दिया जाता है तो उसके संबंध में खाते से राशि काटी जाती है और उसकी ऐंटी भी खाते में की जाती है। यह सही है कि मेरे द्वारा ऐसा कोई स्टेटमेंट जिसमें स्टाप पेमेंट के संबंध में राशि काटे जाने का जिक है प्रस्तुत नही किया गया है स्वतः कहा कि मेरा पैसा भी कटा था। यह बात सही है कि प्रदर्श पी० 1 का चैक खाते में अपर्याप्त नीधि होने के कारण अनादृरित हुआ था साक्षी ने स्वतः कहा कि प्रदर्श पी० 2 बैंक का ज्ञापन में बैंक द्वारा गलती से उक्त कारण उल्लेखित किया गया है।
9. यह बात सही है कि बैंक द्वारा गलती से अपर्याप्त नीधि का उल्लेख किये जाने के संबंध में कोई दस्तावेज प्रस्तुत नही किया गया है स्वतः कहा कि डी 4 का दस्तावेज प्रस्तुत किया है।
यह बात सही है कि चैक बाउंस होने के पश्चात मुझे मैसेज आ गया था जिससे मुझे चैक बाउंस होने की जानकारी हो गई थी। यह कहना गलत है कि चैक बाउंस होने के पश्चात मैने वकील साहब से संपर्क किया और उन्होनें कहा कि सब जगह शिकायते बनाकर शिकायत कर देते है। यह कहना गलत है कि वकील साहब के कहने पर मैने चैक अनादृरित होने के पश्चात झूठी शिकायते की है।"
16. It is clear from the above statement that the documents produced by the non-applicant i.e. the complaint made to the police and the intimation to the bank have been doubted. Neither the officers of the police department nor the bank officials were called for in the court so as to establish that these documents were moved by the non-applicant.
17. Although, as per the statement of the complainant and the letter of the bank, it can be gathered that some complaint was made to the police but that is not sufficient. If a person issues a cheque with full knowledge that the said cheque could not be cleared and he has to deny the payment, he could make a complaint to the police, but on the contrary, it is a very common thing that the moment anybody loses his cheque book, his first step would be to intimate the bank asking them to stop payment over the cheques lost by him and thereafter he could make a report to the police but there is nothing specific available on record so as to indicate that the bank was duly informed that the payment of the Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 9 CRR-681-2022 cheques lost by the non-applicant should not be made and it be stopped. It was very important fact which has not been considered by the appellate court that despite making complaint to the bank about missing of the cheques and when one of the missing cheques i.e. Ex.P-1 was presented at the bank, instead of intimating and making endorsement about stopping payment, the same was dishonoured for the reason 'insufficient fund'.
18. It was the non-applicant who has stated that the mistake was committed by the bank but no bank official was brought to the witness box so as to apprise the court that the said mistake was committed by them. In the existing circumstances, when the intimation to the police and also to the bank was doubted in a cross-examination of non- applicant, then burden is fully upon the non-applicant to prove that those documents were genuine and to substantiate the same, concerning offices had to be brought in the witness box. At the most, officers of the bank should have been brought in the witness box so as to satisfy the court that the cheque should have been dishonoured on the ground of stop payment request because the bank was preintimated for not clearing the said cheques but it was not done and only on the basis of oral statement of the non-applicant that it is the mistake committed by the bank, the presumption as has been drawn in favour of the complainant, cannot be said to have been properly rebutted.
19. In the similar circumstances, the Supreme Court in a case reported in (2001) 6 SCC 16 (Hiten P. Dalal Vs. Bratindranath Banerjee) in paragraphs-20 to 24 has observed as under:-
"20. That the four cheques were executed by the Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 10 CRR-681-2022 appellant in favour of Standard Chartered Bank (hereafter referred to as "the Bank") has not been denied nor was it in dispute that the cheques were dishonoured because of insufficient funds in the appellant's account with the drawee viz. Andhra Bank. Because of the admitted execution of the four cheques by the appellant, the Bank was entitled to and did in fact rely upon three presumptions in support of its case, namely, under Sections 118, 138 and 139 of the Negotiable Instruments Act. Section 118 provides, inter alia, that until the contrary is proved it shall be presumed that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration. The presumption which arises under Section 138 provides more specifically that where any cheque drawn by a person on an account for payment of any amount of money for the discharge in whole or in part of any debt or other liability, is returned by the drawee bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque, such persons shall be deemed to have committed an offence and shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. The nature of the presumption under Section 138 is subject to the three conditions specified relating to presentation, giving of the notice and the non-payment after receipt of notice by the drawer of the cheque. All three conditions have not been denied in this case.
21. The appellant's submission that the cheques were not drawn for the "discharge in whole or in part of any debt or other liability" is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that:
"139. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."
The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.
22. Because both Sections 138 and 139 require that the Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 11 CRR-681-2022 court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras v. A. Vaidyanatha Iyer [AIR 1958 SC 61 :
1958 Cri LJ 232] it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused." (Ibid. at p. 65, para 14.) Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists"
[ Section 3, Evidence Act] .
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".]
24. Judicial statements have differed as to the quantum of rebutting evidence required. In Kundan Lal Rallaram v. Custodian, Evacuee Property [AIR 1961 SC 1316] this Court held that the presumption of law under Section 118 of the Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised under Section 114 of the Evidence Act. The decision Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 12 CRR-681-2022 must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai v. State of Maharashtra [AIR 1964 SC 575 : (1964) 1 Cri LJ 437] where this Court reiterated the principle enunciated in State of Madras v. Vaidyanatha Iyer [AIR 1958 SC 61 : 1958 Cri LJ 232] and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted". (AIR p. 580, para 12) (See also V.D. Jhingan v. State of U.P. [AIR 1966 SC 1762 : 1966 Cri LJ 1357] , Sailendranath Bose v. State of Bihar [AIR 1968 SC 1292 : 1968 Cri LJ 1484] and Ram Krishna Bedu Rane v. State of Maharashtra [(1973) 1 SCC 366 : 1973 SCC (Cri) 335].)"
20. Likewise, the Supreme Court in a case reported in (2019) 4 SCC 197 (Bir Singh Vs. Mukesh Kumar) in paragraphs-18, 20 and 24 has observed as under:-
"18. In passing the impugned judgment and order dated 21-11-2017 [Mukesh Kumar v. Bir Singh, 2017 SCC OnLine P&H 5352], the High Court misconstrued Section 139 of the Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 13 CRR-681-2022 Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.
x x x
20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC (Cri) 960] .
x x x
24. In K.N.Beena v. Muniyappan (2001) 8 SCC 458 :
2002 SCC (Cri) 14], this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability."Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 14
CRR-681-2022
21. The Coordinate Bench of this Court also in a case reported in ILR 2021 MP 503 (Deepak Advertisers through Proprietor Deepak Jethwani Vs. Naresh Jethwani), dealing with the applicability of Section 139 of NI Act, has observed as under:-
"30. Further, this Court has already held that the disputed cheque, Ex.P. 1 bears the signatures of the respondent. Section 139 of Negotiable Instruments Act, 1988 provides for presumption that the disputed instrument was issued in discharge of legally enforceable debt. The Supreme Court in the case of Shree Daneshwari Traders v. Sanjay Jain reported in (2019) 16 SCC 83 has held as under:
17. Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the drawer, a presumption under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to under Section 138 of the Negotiable Instruments Act is for the discharge in whole or in part of any debt or other liability. The initial burden lies upon the complainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legally enforceable debt.
18. It is for the accused to adduce evidence of such facts and circumstances to rebut the presumption that such debt does not exist or that the cheques are not supported by consideration.
19. Considering the scope of the presumption to be raised under Section 139 of the Act and the nature of evidence to be adduced by the accused to rebut the presumption, in Kumar Exports v. Sharma Carpets, the Supreme Court in paras 14-15 and paras 18-20 held as under : (SCC pp. 519-
21) "14. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 15 CRR-681-2022 insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely. (1) "may presume" (rebuttable). (2) "shall presume" (rebuttable), and (3) "conclusive presumptions" (irrebuttable). The term "presumption" is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means taking as true without examination or proof.
* * *
18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help Mm shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of anv debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. 91 "When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 16 CRR-681-2022 fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, thepurpose of the presumption is over.
20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man wouldunder the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not-supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act"
(emphasis supplied) Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 17 CRR-681-2022
31. It is next contended by the Counsel for the respondent that the appellant has failed to prove that the cheque was issued in discharge of legally enforceable debt.
32. Considered the submissions made by the Counsel for the parties.
33. It is the case of the appellant, that the respondent had given a contract for advertisment of his shop and accordingly, hoardings and pamphlets on the body as well as seats of a bus were affixed. The photographs Ex P8 and P. 9 have been filed by the appellant. The respondent has also admitted that the photographs contain his number and photo of the shop. He also admitted that he never made any complaint with regard to the advertisement. The bills Ex. P. 10 and P. 11 have also been produced by the appellant. Further, the respondent has taken a false stand that the cheques were stolen from his drawer. Under these circumstances, it is held that the respondent had issued the cheque in discharge of legally enforceable debt.
34. It is next contended by the Counsel for the respondent that the return memo Ex. P2 is not proved. Considered the submissions made by the Counsel for the parties.
35. As per the return memo Ex.P2, issued by ICICI Bank, the cheque was returned on two counts;
(i) Funds Insufficient (ii) Drawer's signatures incomplete/Differs/Required.
36. So far as insufficiency of funds is concerned, it is not the case of the respondent that he had sufficient funds in his account. So far as the drawer's signature incomplete is concerned, it is not the case of the respondent that the disputed cheque Ex.P1 does not bear his signature. So far as the stand of the respondent that since the return memo Ex.P2 issued by ICICI Bank does not bear the seal of the Bank and, therefore, the same cannot be relied upon is concerned, the said submission of the counsel for the respondent cannot be accepted. The return memo Ex.
P2 bears signature of an officer of ICICI Bank. The respondent has examined Ajay Jadaon (DW2), an Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 18 CRR-681-2022 employee of ICICI Bank, who did not try to prove that the return memo Ex.P2 was never issued by the Bank. On the contrary, it appears that when the counsel for the appellant tried to put a question to Ajay Jadon (DW2) with regard to return memo Ex.P2, then it was objected by the respondent's counsel. Further, Section 146 of N.I. Act provides for presumption, but it does not provide that unless and until, the return memo bears the seal of the bank, it cannot be read in evidence. In the present case, the appellant has proved beyond reasonable doubt that the return memo, Ex. P. 2 was duly issued by ICICI Bank.
37. Thus, this Court is of the considered opinion, that the appellant has successfully established that the disputed cheque, Ex. P.J. was issued by the respondent in discharge of his legally enforceable debt, which stood bounced due to in-sufficient funds. Accordingly, the judgment dated 13/10/2017 passed by Additional Chief Judicial Magistrate, Gwalior in Criminal Case No. 14094/2010 is hereby set aside and the respondent is hereby convicted under Section 138 of Negotiable Instruments Act."
22. In view of the above enunciation of law, I am also of the opinion that in the present case heavy burden lies upon the non-applicant/accused to rebut the presumption but that was not properly done and the appellate court has not considered this aspect and has wrongly found that the presumption has been rebutted and as such, I am not convinced with the finding given by the appellate court in the impugned judgment so as to observe that the cheque was misused and the trial court has wrongly observed that the presumption drawn in favour of the complainant has not been rebutted and reversed the finding. The said finding of the appellate court and the order passed by it, is not sustainable in the eyes of law, therefore, it is set aside. The order passed by the trial court is affirmed.
Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM 19CRR-681-2022
23. Ex consequentia, the revision is allowed.
24. The non-applicant is on bail. He is directed to surrender before the trial court on or before 9th of May, 2025, failing which the trial court shall take necessary steps against the non-applicant for serving the remaining sentence, if already not served. Further, if compensation as awarded by the trial court is not paid, the same be paid by the non- applicant to the applicant.
25. Record of the courts below be sent back immediately along with a copy of this order for its compliance and necessary action.
(SANJAY DWIVEDI) JUDGE ac/-
Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 4/23/2025 10:38:09 AM