Nafr High Court
Case Details
1 Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.04.21 17:44:30 +0530 2025:CGHC:17726 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 1163 of 2024 Prakash Kumar S/o Shri Tripurari Prasad, Aged About 73 Years Residence Of Village- Kokdi, P.S.-Baloda Bazar, District-Baloda Bazar-Bhatapara (C.G.) -----(Complainant) ... Appellant(s) versus Chhaganlal Verma S/o Chaitram Verma, Aged About 45 Years Residence Of Vardhman Nagar, Baloda Bazar, P.S. And Tahsil- Baloda Bazar, District- Baloda Bazar- Bhatapara (C.G.) ----(Accused/respondent) ... Respondent(s) For Appellant For Respondent(s) : :
Legal Reasoning
Ms. Ankita Shukla, Adv. Mr. Anand Kesharwani, Adv. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 17.04.2025 1. This appeal has been preferred against the judgment of acquittal dated 06.08.2024 passed by the Chief Judicial Magistrate, Balodabazar, District Balodabazar Bhatapara in Criminal Case No.56/2022, whereby, the respondent/accused was acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short, the “NI Act”). 2. As per complaint, the complainant and respondent/accused were acquainted to each other. The accused has taken a cash loan of Rs.5,50,000/- from the complainant/appellant for domestic work in the year 2018 and promised to return the amount within one year, however, he has not paid the same within the said period. After several efforts 2 made by the complainant, the accused given cheque of Rs.5,50,000/- on 15.09.2021. However, when the cheque was presented before the Bank for encashment, the same was returned dishonoured for want of insufficient funds. The complainant has also legal notice to the accused for payment of cheque amount, however, the accused has not paid the same. Hence, the complainant has filed complaint case against the accused. 3. The accused has denied the allegation levelled against him and claimed to be tried. The trial Court after evaluating the evidence on record reached to conclusion that the complainant failed to establish his case beyond reasonable doubt and acquitted the accused of the charge under Section 138 of the NI Act. 4. Learned counsel for the appellant submits that there is a legal presumption under Section 139 of the NI Act that valid consideration has been passed which has not been rebutted by the respondent/accused, however, the trial Court has not appreciated the evidence in proper perspective and committed error while passing the judgment of acquittal, therefore, the judgment of acquittal deserves to be set-aside. 5. Heard learned counsel for the parties and perused the record carefully. 6. In the matter of Rajesh Jain Vs. Ajay Singh, (2023) 10 SCC 148, the law relating to the effect of legal presumption as per Section 118 and Section 139 of the NI Act has been clarified. As per Section 118 of the NI Act it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration and as per 3 Section 139 of the Act “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. Both the presumptions are rebuttable in nature. The relevant paras of the aforesaid judgment i.e. 33 to 44 is reproduced hereunder:- “33. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability”. It will be seen that the “presumed fact” directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated- reference to one can be taken as reference to another” “34. Section 139 of the NI Act, which takes the form of a “shall presume” clause is illustrative of a presumption of law. Because Section 139 requires that the Court “shall presume” the fact stated therein, 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. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase “unless the contrary is proved”.” “35.The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque 4 that proves and secondly, in the event where the complainant cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel & Drum Mfg. v. Amin Chand Payrelal] [(1999) 3 SCC 35]” “36.Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.” “37. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.” “38.John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law on Evidence states as follows: “The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the 5 presumption ‘disappears as a rule of law and the case is in the Jury's hands free from any rule.” “39.The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of “preponderance of probabilities”, similar to a defendant in a civil proceeding. [Rangappa vs. Sri Mohan (AIR 2010 SC 1898)]” “40.In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words “until the contrary is proved” occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa v. Mudibasappa (AIR 2019 SC 1983); see also Kumar Exports v. Sharma Carpets (2009) 2 SCC 513]” “41.In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused’s case may be even fifty-one to forty- nine and arising out of the entire circumstances 6 of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 CrPC statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was “no debt/liability”. [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513]” “42.The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.” “43.The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundan Lal case v. Custodian (Evacuee Property), AIR 1961 SC 1316 when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Sections 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.” 7 “44.Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption “disappears” and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all [Basalingappa v. Mudibasappa, AIR 2019 SC 1983; see also, Rangappa v. Sri Mohan (2010) 11 SCC 441]” importance. its 7. Reverting back to the present case, the complainant has admitted in his statement that he has given loan to the accused, however, he failed to explain exact date on which he has given the said loan to the accused. On other hand, the accused has taken a defence that he was doing partnership business with daughter of the complainant, namely, Anjali Tiwari. The said business is related to manufacturing of plastic bags and both were used to make transactions of amount through cheque or other sources in connection with such business, however, the complainant misused the said cheque and implicated him in a false case. 8. The respondent/accused has also produced and admitted the document Ex.D-2 which is a statement of account showing transaction between him and that Anjali Tiwari. From the said document it appears that there was business relation between them. However, in the cross-examination 8 the complainant has categorically stated that he is not aware about such business relation. In such circumstances, it is explicit that the transaction between the parties itself is doubtful. 9. In the matter of Dattatraya Vs. Sharanappa reported in 2024 (8) SCC 573, it has been observed that when the appellant is not able to plead even a valid existence of a legally recoverable debt as the very issuance of cheque is dubious based on the fallacies and contradictions in the evidence adduced by the parties and when the accused has been able to cast a shadow of doubt on the case presented by the appellant, in the circumstances, the accused successfully rebutted the presumption stipulated by Section 139 of the NI Act 1881. It is also established that where two views are possible, then the appellate Court should not ordinarily interfere and reverse the findings of acquittal. 10. In view of the aforesaid principles and taking into consideration the aforesaid facts, this Court is of the view that the respondent has successfully rebutted the presumption and the findings arrived at by the trial Court was a possible view which is based on proper appreciation of evidence on record. Hence, this Court does not find any infirmity and illegality in the judgment impugned. 11.Accordingly, the appeal fails and is hereby dismissed at motion stage itself.
Decision
12.Ancillary application, if any, also stands disposed of. Judge Ajay Sd/- (Deepak Kumar Tiwari)