Delhi District Court
Ram Chander vs Ishwar Singh Cc No. : 4505/10 on 25 February, 2012
IN THE COURT OF SH. RAKESH KUMAR SINGH:
METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL:
ROOM NO.-42, TIS HAZARI COURT COMPLEX, DELHI
Ram Chander Vs Ishwar Singh CC No. : 4505/10
U/s 138 NI Act
25.02.2012
JUDGMENT
a. Serial No. of the case
4505/2010
b. Date of the commission of the offence
01.07.2005
c. Name of the complainant
Ram Chander
d. Name of accused person and his parentage and residence
Ishwar Singh S/o Sh. Lala Ram, Jai Kabir Cooperative Industrial Society Ltd. Smt. Kamlesh W/o Sh. Ishwar Singh, Jai Kabir Cooperative Industrial Society Ltd.
e. Offence complained of or proved Dishonor of cheque for insufficient funds punishable under Section-138 NI Act.
f. Plea of the accused and his examination (if any)
Not guilty. Alleged loan was not taken. No liability.
g. Final Order
Not guilty. Acquitted.
h. Date of such order
25.02.2012
i. Brief reasons:
"Just as there is evidence on behalf the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence Ram Chander Vs Ishwar Singh CC No. : 4505/10 1 and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence. . . Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and Subject also to any stationary exception. If, at the end of and on the whole of the case, there reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
------Viscount Sankey, L. C. in Woolmington versus Director of Public Prosecution: 1935 AC 462 The present case being tried as summons trial at all point of time deserves a judgment under Section-355 Cr. P. C. The complainant has filed the present complaint on the basis of dishonoured cheque of Rs. 97,400/- received in lieu of friendly loan given to the accused for the same amount. The said cheque when dishonored due to insufficient funds, the complainant issued a legal demand notice to the accused however, the accused has failed to pay the amount. Hence this complaint. The complainant has filed his affidavit to establish the ingredient of the section 138 NI Act. The cheque is exhibit as Ex. CW-1/1, returning memo is Ex. CW-1/2, legal demand notice Ex. CW-1/3, registry receipts Ex. CW-1/4 to Ex. CW1/7, AD Cards Ex.CW1/8 to Ex. CW1/11 & notice sent to courier Ex. CW1/12.
The cheque was having signatures of both the accused persons. Notice was framed against the accused persons to which the accused have pleaded not guilty and stated that the cheque was given to Ram Chand and not to the complainant. They further claimed that the complainant is not entitled to any amount.
The complainant was cross examined. In the examination under section 313 Cr. P. C accused persons stated that they never took any loan of Rs.97,400/- from the complainant. Accused, however, failed to lead defence evidence despite opportunities.
Both the parties have been heard.
The story of the complainant is inherently not believable. Complainant and his brother were having daily earning of Rs.150/- to Rs.200/- out of which the complainant claimed his share as Rs.100/-. Complainant's family consists of his wife and two daughters. The house of the complainant is constructed up to third floor. He constructed the house in the year 2001. He has also installed electricity connection in the house for which bimonthly bill was Rs280/-. Clearly complainant was earning a maximum of Rs.3,000/- pm and was also having his family to be supported by him. Complainant was earning Rs.
Ram Chander Vs Ishwar Singh CC No. : 4505/10 236,000/- per year if we calculate a daily earning of Rs.100/-. He constructed his house in the year 2001. He purportedly given the loan from May to July 2004. Till July 2004 he could have a total earning of 3 ½ years (time of constructions of house in the year 2001 is not clear and even on the higher side we can include the year 2001 as calculating his total earning. He has accepted that the said house was constructed from the earning out of selling Chhole Bhature i.e business run by both the brothers out of which he claimed to have earning of Rs.100/- per day). If we calculate his total earning from 2001 to July 2004 it would come to a maximum of Rs.1,26,000/- which is on maximum side. It is also pertinent that complainant was to maintain his family and also to pay the electricity bills. It is highly improbable to keep a loan of Rs.97,400/- in such circumstances. Complainant has not claimed any other source of income.
The complainant stated in his cross examination that he had advanced the loan in part as Rs.30,000/- in May 2004, Rs.20,000/- in June 2004 & Rs.30,000/- in July 2004. He accepted that after July 2004 he had not given any amount to the accused. As such the total amount comes to Rs.95,000/-. Whereas, he claimed in the complaint to have given a loan of Rs. 97,400/-. This fact is also going against the complainant.
The next circumstance which is going against the complainant is that he was having a receipt issued by the accused to have obtained a loan of Rs.30,000/- on 12.05.2004. It is highly unnatural that complainant was having no receipt of other loan advanced to the loan on very subsequent month. Even complainant had not brought on record this receipt while filing his affidavit. The receipt is Ex. CW1/D.1 was filed in entirely different circumstances. In his cross examination, the complainant is stated that "I have issued the receipt to the accused for the amount paid to the accused. The said receipt is on record". However, when the complainant was confronted with the record where this receipt was not filed, he undertaken to produce the receipt. However, he produced only one receipt i.e for Rs.30,000/- whereas his claim was that he issued the receipt for the payment made to the accused (pertinently his claim of payment is Rs.97,400/- and not of Rs.30,000/-). Interestingly, even the said receipt is not issued by the complainant. This receipt is basically issued by the accused and not by the complainant.
Complainant claimed that his wife was also present at the time of advancing the loan. The complainant, however, never tried to examine his wife to prove the advancement of loan. This is also going against the complainant.
So far as the claim of the complainant that amount of Rs.97,400/- was inclusive of interest is concerned, the same cannot be believed. Neither in complaint nor in affidavit he claimed to have given the loan on interest. It is only in the cross examination when he claimed that loan was advanced on interest of 3% per month. Even otherwise if we see the repayment of the cheque which is dated 20.04.2005 and calculate the interest from May or July 2004, the total amount will be much higher than Rs.97,400/-. The claim of the complainant cannot be believed.
No doubt there are certain mandatory presumptions of law in favour of the complainant however such mandatory presumptions are rebuttable in nature.
In Pine Product Industries And Anr. vs R.P. Gupta And Sons And Anr. on 6 December, 2006 II (2007) BC 20 Hon'ble High Court of Delhi has acquitted an accused virtually on the ground that the compliant was vague. It was observed Ram Chander Vs Ishwar Singh CC No. : 4505/10 3 and held therein as under:
"6. The learned Counsel for the petitioner submitted that the above paragraph is the only statement contained in the complaint with regard to the alleged liability of the petitioner. He submitted that no details whatsoever have been indicated as to what the liabilities were, what were the "amounts" for which the said cheque was issued for part payments, on which dates the amounts were taken by the petitioner. Nor were the exact "amounts" taken by the petitioner mentioned. In other words, the learned Counsel for the petitioner submitted, the complaint was completely vague and bereft of any details.
12. In the present case, I find that the petitioner despite opportunities granted to him, did not lead any defense evidence. An application under Section 311 of the Code had been moved before the trial court but the same had been rejected. So, we are left with only the evidence led by the complainant. If the petitioner is yet able to show from the evidence on record that the presumption is rebutted then the complainant must be able to establish from the evidence on record itself that a case under Section 138 is clearly made out. The petitioner has been able to show that a contemporaneous reply given by him on 04.02.2000 raised issues with regard to the manner and circumstance under which the complainant came in possession of the cheque in question. However, despite being aware of these issues, when the complaint was filed by the complainant, as rightly pointed out by the learned Counsel for the petitioner, the same was significantly vague and bereft of any details. The first paragraph of the complaint which has been extracted above clearly refers to "discharge liabilities of repayments of the amounts". The expression used in the complaint is that the cheque was given in discharge of liabilities of repayments of the "amounts". Meaning thereby that several amounts were paid by the complainant to the petitioner and it is in discharge of the liabilities of repayments, in part, of such amounts that the cheque was given. Unfortunately, the evidence on record and that too of PW1 himself is at variance with this statement. Despite the contradiction which has been pointed out and the shifting stands taken by the PW1 in his testimony, even if it is presumed that an "advance" of Rs. 5 lakhs was paid by the complainant to the petitioner, the same has been indicated to have been paid in one go and therefore, the expression "amounts" appearing in the complaint would be at variance with the evidence led by PW1. Apart from this, there is no mention in the complaint as to when the "amounts" were or amount was paid. What was the rate of interest, what was the extent of the goods which were supplied and adjusted against the payment. Further more, in the testimony of PW1, it is not indicated as to when the said advance of Rs. 5 lakhs was made, on which date the goods were received, what was the rate of interest. From which date the interest was to be computed and how was the figure of Rs. 2.96 lakhs representing the principal amount Ram Chander Vs Ishwar Singh CC No. : 4505/10 4 computed. Nor is there any computation of the interest element of the difference between Rs. 3.15 lakhs and Rs. 2.96 lakhs indicated. All these details are conspicuously absent. The petitioner has been convicted and sentenced on the vague and bland allegation that cheque of Rs. 3,15,000/- had been issued by the petitioner in discharge of liabilities of repayments of amounts taken by him. This is the only statement contained in the complaint and no further details are forthcoming even in the evidence led by the complainant.
13. In these circumstances, I hold that the courts below have grossly erred in law in concluding that the petitioner was unable to rebut the presumption raised under Section
139. Since, the conviction and sentence have been raised merely on the petitioner's alleged inability to rebut the presumption and there is nothing available on record to establish the complainant's case, I am of the view that the petitioner is entitled to acquittal. The impugned order is set aside. The petitioner is acquitted. The petitioner is in custody. He is directed to be released forthwith."
Mandatory presumptions of law do not relieve the prosecution from establishing the foundational facts. The prosecution has to stand on its on legs. The burden is so heavy that no blemishes in the story of the accused can give a right to the complainant to claim that his version should be preferred. whereas the burden on the accused is slightly light as he has to discharge the burden by preponderance of probabilities. If he shows by preponderance of the probabilities that the consideration does not exist or the non existence of consideration is so probable that a prudent man in the circumstances to believe its non existence, the complainant has to fail. It is well settled law that even if two view are possible, the court should adopt the view which does not interfere in the life and liberty of any person.
The complaint has to fail.
Nature and extent of rebuttal:
2. A three judges bench of Hon'ble Supreme Court while dealing with Prevention of Corruption Act has observed in Trilok Chand Jain vs State Of Delhi 1977 AIR 666 as under:
"The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross- examination or otherwise. But the degree and the character of the burden of proof which s. 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under Ram Chander Vs Ishwar Singh CC No. : 4505/10 5 s. 101, Evidence Act rests on the prosecution. While the mere plausibility of an explanation given by the accused in his examination under s. 342, Cr.P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderence of probability in his favour; it is not necessary for him lo establish his case beyond a reasonable doubt-see Mahesh Prasad Gupta v. State of Rajasthan (1). Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under s. 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under s. S (1) (2) of the Prevention of Corruption Act and s. 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born."
2.1. To what extent a mere reliance upon the presumptions of law can help the complainant is the question involved in the present case.
2.2. Hon'ble Supreme Court in K. Prakashan vs P.K. Surenderan decided on 10 October, 2007 has also dealt with the aspect of friendly loan and scope of presumptions of law. The facts of the case were:
"3. Respondent herein allegedly, on diverse dates, advanced a sum of Rs. 3,16,000/- to the appellant who issued a cheque for the said amount on 18.12.1995. The said cheque was dishonoured on the ground of insufficient fund. Allegedly, when the matter was brought to the notice of the appellant, he undertook to remit the amount on or before 30.01.1996. The cheque was again presented but the same was not encashed on the ground payment stopped by the drawer.
5. The complainant in support of its case led evidence to show that he had advanced various sums on the following terms:
On 31-1-94 a sum of Rs. One lakh; on 8-6-94, Rs. 86,000/-; on 12-6-94, Rs. 28,000/-; on 23-4-95, Rs. 50,000/- on 18-6-95, Rs. 40,000/- and on 7-8-95, Rs. 12,000/-.Ram Chander Vs Ishwar Singh CC No. : 4505/10 6
6. Defence of the appellant, on the other hand, was that he had issued blank cheques for the purpose of purchase of spare parts, tyres, etc. in connection with the business of transport services run in the name of his brother. The blank cheques used to be returned by the sellers of spare parts, etc. when the amounts were paid. According to the appellant, the complainant lifted the impugned cheque book put in the bag and kept in his shop. Appellant in support of his case examined the Bank Manager of the Bank concerned. "
Hon'ble High Court having reversed the judgment of acquittal, accused approached the Hon'ble Supreme Court. Hon'ble Supreme Court has observed therein that:
"14. The learned Trial Judge had passed a detailed judgment upon analysing the evidences brought on record by the parties in their entirety. The criminal court while appreciating the evidence brought on record may have to weigh the entire pros and cons of the matter which would include the circumstances which have been brought on record by the parties. The complainant has been found to be not a man of means. He had allegedly advanced a sum of Rs. 1 lakh on 13.01.1994. He although had himself been taking advances either from his father or brother or third parties, without making any attempt to realize the amount, is said to have advanced sums of Rs. 86,000/- on 8.06.1994. Likewise he continued to advance diverse sums of Rs. 28,000/-, Rs. 50,000/-, Rs. 40,000/- and Rs. 12,000/- on subsequent dates. It is not a case where the appellant paid any amount to the respondent towards repayment of loan. He even did not charge any interest. He had also not proved that there had been any commercial or business transactions between himself and the appellant. Whey the appellant required so much amount and why he alone had been making payments of such large sums of money to the appellant has not been disclosed. According to him, he had been maintaining a diary. A contemporaneous document which was in existence as per the admission of the complainant, therefore, was required to be brought on records. He failed to do so. He also did not examine his father and brothers to show that they were men of means and in fact advanced a huge sum to him only for the purpose of grant of loan by him to the appellant. The learned Trial Court not only recorded the inconsistent stand taken by the complainant in regard to the persons from whom he had allegedly borrowed the amount, it took into consideration the deposit of the cheques in the bank commenting: Ext. D1 the counterfoil of the cheque book issued to the accused from that bank, was proved through him. It contains the counterfoils of the cheques 782451 to 782460. Ext. D2 is the pass book issued to the accused from that bank. SW1 is the Branch Manager of Syndicate Bank,Koyilandy. He would say that in Ext. P4 ledger extract, cheque No. 782460 reached the bank for collection on Ram Chander Vs Ishwar Singh CC No. : 4505/10 7 30.12.93. The net transaction in that account was in the year 1996. Cheque No. 782451 reached the bank on 8.1.96. Ext. D1 shows that is the first cheque in that book. 782460 is the lost cheque in that book. If the lost cheque i.e. 782460 reached the bank for collection on 30.12.93 in normal and reasonable course the first cheque i.e. 782451 might have been issued even prior to that date. Case of the complainant is that Ext. P1 cheque was given to him by the accused on 5.10.95 and the cheque was dated 18.12.95. Ext. P4, D1 and D2 substantiate the case of the accused that the allegation of the complainant that Ext. P1 cheque was given to him on 18.12.95 is not genuine."
Hon'ble Supreme Court. Hon'ble Supreme Court has observed therein that:
"15. The High Court, as noticed herein before, on the other hand, laid great emphasis on the burden of proof on the accused in terms of Section 139 of the Act.
16. The question came up for consideration before a Bench of this Court in M.S. Narayana Menon (supra) wherein it was held:
"38. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a fortiori even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court."
A presumption is a legal or factual assumption drawn from the existence of certain facts. It was furthermore opined that if the accused had been able to discharge his initial burden, thereafter it shifted to the second respondent in that case.
The said legal principle has been reiterated by this Court in Kamala S. v. Vidhyadharan M.J. and Another [(2007) 5 SCC 264] wherein it was held:
"The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case."
The nature and extent of such presumption came up for consideration before Ram Chander Vs Ishwar Singh CC No. : 4505/10 8 this Court in M.S. Narayana Menon Alias Mani V. State of Kerala and Anr. [(2006) 6 SCC 39] wherein it was held :
"30. Applying the said definitions of proved or disproved to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non- existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration dos not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. "
This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution, it was held;
"33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another. "
..........
18. Ms. Srivastava has relied upon a decision of this Court in Goaplast (P) Ltd. v. Chico Ursula DSouza and Another [(2003) 3 SCC 232].........
"The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act which is to promote the efficacy of banking operation and to ensure credibility in business transactions through banks persuades us to take a view that by countermanding payment of post-dated cheque, a party should Ram Chander Vs Ishwar Singh CC No. : 4505/10 9 not be allowed to get away from the penal provision of Section 138 of the Act. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of ones own wrong. If we hold otherwise, by giving instructions to banks to stop payment of a cheque after issuing the same against a debt or liability, a drawer will easily avoid penal consequences under Section 138. Once a cheque is issued by a drawer, a presumption under Section 139 must follow and merely because the drawer issued notice to the drawee or to the bank for stoppage of payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of the cheque in due course. This was the view taken by this Court in Modi Cements Ltd. v. Kuchil Kumar Nandi 2 . On same facts is the decision of this Court in Ashok Yeshwant Badave v.
Surendra Madhavrao Nighojakar. The decision in Modi case overruled an earlier decision of this Court in Electronics Trade & Technology Development Corpn. Ltd. v. Indian Technologists & Engineers (Electronics) (P) Ltd. which had taken a contrary view. We are in respectful agreement with the view taken in Modi case. The said view is in consonance with the object of the legislation. On the faith of payment by way of a post-dated cheque, the payee alters his position by accepting the cheque. If stoppage of payment before the due date of the cheque is allowed to take the transaction out of the purview of Section 138 of the Act, it will shake the confidence which a cheque is otherwise intended to inspire regarding payment being available on the due date. "
19. No exception to the aforementioned legal principle can be taken. What, however, did not fall for consideration in the aforementioned case was as to how the said burden can be discharged.
20. It is now trite that if two views are possible, the appellant court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate courts jurisdiction to interfere is limited. [See M.S. Narayana Menon (supra) and Mahadeo Laxman Sarane & Anr. v. State of Maharashtra, 2007 (7) SCALE 137] Ram Chander Vs Ishwar Singh CC No. : 4505/10 10 The High Court furthermore has not met the reasons of the learned Trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different. "
2.3. Hon'ble Supreme Court in Kamala S vs Vidyadharan M.J. & Anr Appeal (crl.) 233 of 2007, decided on 20.02.2007 has observed as under:
"17. This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution, it was held;
"33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another."
It was further observed that ;
" 38. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a "fortiori" even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court.
39. A presumption is a legal or factual assumption drawn from the existence of certain facts."
2.4. Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 AIR SCW 738 has observed that:
"30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the Ram Chander Vs Ishwar Singh CC No. : 4505/10 11 cheque that the same has been issued for discharge of any debt or other liability.
31.The courts below, as noticed herein before, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different.
... ....
34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. ......
45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have been rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by Section139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
It may be pertinent to mention here that a three judges bench of the Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010 has considered the dictum of Krishna Janardhan Bhat (supra) and overruled the view so far as existence of liability is concerned, however, has not dissented with other parameters observed and laid down in the said case. It Ram Chander Vs Ishwar Singh CC No. : 4505/10 12 has been observed therein that:
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. "
2.5. In the facts and circumstances of the present case, if we make a fine balance between the two propositions i.e. reverse onus and presumption of innocence, it can be safely held that accused has successfully probabilised his defence by showing that the non-existence of debt or liability and consideration is probable or its non existence is so probable that a prudent man would under the circumstances act upon the supposition that it did not exist.
2.6. I am of the opinion that an accused has a right to rebut the presumption by placing reliance upon the circumstances brought and material placed by the complainant. Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010 has further held that:
"However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, 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."
Conclusion:
3. I am of the opinion that the above attending circumstances are sufficient to displace the burden of proof which is somewhat lighter on accused. The law regarding the degree of proof required from the accused to prove his defence is well Ram Chander Vs Ishwar Singh CC No. : 4505/10 13 settled. The accused is required only to prove by preponderance of probabilities that the defence bears ring of truth. The accused is not required to prove his defence beyond reasonable realm of doubt as is required to be done by the prosecution. Accused has created a reasonable doubt in respect of existence of liability and consideration. Complainant failed to discharge the sifted burden. In such circumstances, prosecution has to fail.
4. I accordingly return a finding of not guilty against the accused Ishwar Singh and Kamlesh.
5. Accused Ishwar Singh and Kamlesh are hereby acquitted from the charges in the present complaint case.
6. A copy of this order be placed on the official website of the District Court.
(Rakesh Kumar Singh) MM (NI Act)-Central-01/THC/Delhi/25.02.2012 Ram Chander Vs Ishwar Singh CC No. : 4505/10 14