Gujarat High Court
Pramodkumar Chhotalal Vyas vs State Of Gujarat on 24 January, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 215 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PRAMODKUMAR CHHOTALAL VYAS
Versus
STATE OF GUJARAT
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Appearance:
MR VA MANSURI(2880) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MS MONALI H. BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 24/01/2024
ORAL JUDGMENT
1. This is an appeal filed by the appellant - original
complainant under Section-378 of the Criminal Procedure
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Code challenging the judgment and order dated 23.08.2023
passed by the learned 5 th Additional Chief Judicial Magistrate,
Gandhinagar in Criminal Case No.4603 of 2021, whereby, the
learned trial Court has acquitted the respondent no.2 -
accused from the charges levelled against her under Section-
138 and 142 of the Negotiable Instrument Act.
2. It is the case of the complainant that the complainant is
staying with the family consisting of wife and a younger son
viz.Nrupesh at the address given in the complaint. The
accused is the daughter of brother-in-law and doing the
business of Astrology and Reiki. The marriage of the accused
was solemnized with one Suraj Kumar Shah, who died in the
month of April, 2018. It is alleged in the complaint that the
husband of the accused was doing the business of money
lending. The accused used to visit the house of the
complainant and in the year 2015, the accused had demanded
an amount of Rs.1,00,000/- from the complainant for
renovation of the house and the complainant had lended the
amount of Rs.1,00,000/- to the accused. In the year 2017,
again the accused raised demand of Rs.20,00,000/- for
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renovation of her house, the complainant had lended an
amount of Rs.18,00,000/- in parts to the respondent -
accused. In the year 2018, the husband of the accused died
and thereafter, in the end of the year 2018, the complainant
alongwith the relatives went to accused and demanded the
money back. Against which, a cheque bearing No.624993 of
Indian Overseas Bank, Karelibaugh Branch, Vadodara was
issued by the respondent - accused in favour of the
complainant. It was informed by the accused to the
complainant that the cheque should be deposited on the
instructions given by the accused to the complainant, as due
to sudden death of the husband, number of people were
approaching her and demanded the money back. In the year
2020, due to Covid-19, the complainant has waited, but in the
year 2021, instruction was given by the accused to deposit the
cheque, which was given to the complainant. On being
instructed, the cheque was deposited on 01.07.2021, which
was returned with an endorsement of "insufficient fund" and
therefore, demand notice came to be issued on 27.07.2021 to
the respondent - accused. The said notice was served to the
respondent - accused on 31.07.2021. An evasive reply was
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given by the respondent - accused and denied for issuance of
the cheque. Thereafter, a private complaint came to be filed
under the N.I. Act before the competent Court, wherein, after
recording the verification, the learned trial Court had issued
summons under Section - 204 of Cr.P.C. to the respondent -
accused.
3. On being appearing the respondent - accused, a plea
was recorded below Exh.7 and she pleaded not guilty and
claimed to be tried.
4. To prove the case, the complainant had examined
himself below Exh.8, one witness viz. Vaishali Suresh Vaghela
below Exh.21 and another witness viz.Vijay Vaijnath Nagane
below Exh.30. To prove further, documentary evidence in the
nature of original cheque at Exh.10; return memo at Exh.11;
copy of the notice at Exh.12; receipt of the Post Office at
Exh.13; Track Report of the Post Department at Exh.14; Bank
Statement of accused at Exh.22, Authority Letter at Exh.19;
Letter issued by the Bank at Exh.26; Letter given by the
accused at Exh.27 and Bank Statement of the complainant at
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Exh.32 were produced.
5. On filing closing pursis below Exh.37, further statement
of the respondent - accused came to be recorded, wherein,
she stated that the cheque was stolen and misused by the
complainant. She denied for the existence of any debt and
pleaded to be innocent.
6. After considering the evidence placed on record and the
submissions advanced by the learned advocates for the
respective parties, the learned trial Court had acquitted the
respondent - accused on coming to the conclusion that there
was no any legally enforceable debt against the respondent -
accused, established by the complainant, which is impugned
before this Court.
7. Heard learned advocate Mr. V.A. Manuri for the
appellant - original complainant and Ms. Divyangna Jhala,
learned APP for the respondent - State.
8. Mr. V.A. Mansuri, learned advocate for the appellant
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submits that the learned trial Court had committed grave
error in acquitting the respondent - accused only on the
ground that the debt, which is mentioned in the notice and the
complainant is not present on the day, when the cheque was
deposited with the bank. Learned advocate Mr. Mansuri
further submit that the cheque was issued by the respondent -
accused by filling up the amount column i.e.Rs.18,00,000/- in
the year 2018. He further submits that the learned trial Court
had acquitted respondent - accused by holding that as per
Section-56 of the N.I. Act, the endorsement with regard to the
part payment of the amount is not made and therefore, the
cheque is not a valid cheque. Learned advocate further
submits that there was no any question arise with regard to
the endorsement of the part payment as amount was filled up
by the accused herself and therefore, the payment, which was
made said to be have made, was with regard to the present
dues. There was no any payment, which was established to
have been made, however, the learned trial Court had
acquitted the respondent - accused from the charges levelled
against her.
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9. Learned advocate further submits that the signature on
the cheque was not denied by the respondent - accused,
however, a bare defence, which is stated to have been made is
that the cheque was stolen, have been believed by the learned
trial Court without proving the same by producing the
evidence, or establishing circumstances, which may be in the
nature of preponderance of probability. Learned advocate
further submits that though the presumption, which is in
favour of the complainant under Sections-118 and 139 of the
N.I. Act, was not rebutted by the respondent - accused by
leading probable defence, the learned trial Court had
acquitted the respondent - accused from the charges without
any cogent reason and therefore, it was prayed to interfere
with the judgment and order of the acquittal and to allow the
appeal by convicting the respondent - accused for the alleged
charges.
10. Considering the submission made by the learned
advocate for the complainant, to rebut the relevant provision
of the N.I. Act is required to be produced herein below:-
118 Presumptions as to negotiable instruments. --Until
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the contrary is proved, the following presumptions shall
be made:--
(a) of consideration --that every negotiable instrument
was made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed,
negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration;
(b) as to date --that every negotiable instrument bearing
a date was made or drawn on such date;
(c) as to time of acceptance --that every accepted bill of
exchange was accepted within a reasonable time after its
date and before its maturity;
(d) as to time of transfer --that every transfer of a
negotiable instrument was made before its maturity;
(e) as to order of indorsements --that the indorsements
appearing upon a negotiable instrument were made in the
order in which they appear thereon;
(f) as to stamps --that a lost promissory note, bill of
exchange or cheque was duly stamped;
(g) that holder is a holder in due course --that the holder
of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained
from its lawful owner, or from any person in lawful
custody thereof, by means of an offence or fraud, or has
been obtained from the maker or acceptor thereof by
means of an offence or fraud, or for unlawful
consideration, the burden of proving that the holder is a
holder in due course lies upon him.
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138 Dishonour of cheque for insufficiency, etc., of funds in
the account. -- Where any cheque drawn by a person on
an account maintained by him with a banker for payment
of any amount of money to another person from out of
that account for the discharge, in whole or in part, of any
debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the
credit of that account is insufficient to honour the cheque
or that it exceeds the amount arranged to be paid from
that account by an agreement made with that bank, such
person shall be deemed to have committed an offence and
shall, without prejudice to any other provisions of this Act,
be punished with imprisonment for 19[a term which may
be extended to two years], or with fine which may extend
to twice the amount of the cheque, or with both: Provided
that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a
period of six months from the date on which it is drawn or
within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque,
as the case may be, makes a demand for the payment of
the said amount of money by giving a notice in writing, to
the drawer of the cheque, 20[within thirty days] of the
receipt of information by him from the bank regarding the
return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment
of the said amount of money to the payee or, as the case
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may be, to the holder in due course of the cheque, within
fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or
other liability" means a legally enforceable debt or other
liability.]
139. Presumption in favour of holder.-- 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.
11. Considering the aforesaid provisions first of all what is a
presumption that is to be taken into consideration by this
Court, as per the judgment rendered by the Hon'ble Apex
Court in the case of M.S.Narayana Menon Vs . State Of Kerala
reported in (2006) 6 SCC 39, a discussion with regard to the
presumption is provided in para-40, which is reproduced
herein below.
40. "In P. Ramanatha Aiyar's Advanced Law Lexicon,
3rd edition, at page 3697, the term 'presumption' has
been defined as under: "A presumption is an inference
as to the existence of a fact not actually known arising
from its connection with another which is known. A
presumption is a conclusion drawn from the proof of
facts or circumstances and stands as establishing facts
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until overcome by contrary proof.
A presumption is a probable consequence drawn from
facts (either certain, or proved by direct testimony) as
to the truth of a fact alleged but of which there is no
direct proof. It follows, therefore that a presumption of
any fact is an inference of that fact from others that are
known". (per ABBOTT, C.J., R. v. Burdett, 4 B. & Ald,
161)
The word 'Presumption' inherently imports an act of
reasoning a conclusion of the judgment; and it is
applied to denote such facts or moral phenomena, as
from experience we known to be invariably, or
commonly, connected with some other related facts.
(Wills on Circumstantial Evidence)
A presumption is a probable inference which common
sense draws from circumstances usually occurring in
such cases. The slightest presumption is of the nature
of probability, and there are almost infinite shades from
slight probability to the highest moral certainty. A
presumption, strictly speaking, results from a
previously known and ascertained connection between
the presumed fact and the fact from which the
inference is made."
Having noticed the effect of presumption which was
required to be raised in terms of Section 118(a) of the
Act, we may also notice a decision of this Court in
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regard to 'presumption' under Section 139 thereof".
12. Considering the above provisions, the record and
proceedings is to be perused, then the cross-examination is
conducted by the learned advocate for respondent - accused
of the complainant to rebut the presumption. The relevant
admission is reproduced herein below.
12.1 It is true that the in the cheque produced below Exh.10,
the amount column and date was filled up by me. The said
cheque was blank cheque. It is true that I have received reply
to the notice below Exh.12. I do not have knowledge as to
whether the said reply was produced on the record of the
court or not. It is true that as per para-3 of the complaint, an
amount of Rs.1,00,000/- was lended to the respondent
accused in piecemeal in the year 2015 for the purpose of
repairing and renovation of house. I do not recollect how
much amount was lended to the respondent in the first and
second part, but, the writing was executed to that effect,
which is with me and I am ready to produce the same. It is
true that till date, I have not produced the said writing on the
record of Court.
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12.2 My son is serving as a driver in Sabar College, Majra. It
is not true that the amount was lended by my son. My son is
not filing Income-tax return. Right-now, I am retired. Earlier I
am filing Income-tax return, right-now I am not filing income-
tax return. From the year 2015 to 2018 I have not filed my
income-tax return. The monthly income of my son viz.Nrupesh
is of Rs.10,000/-. The annual income of my son for the period
from 2015 to 2017 was of Rs.1,20,000/-. As per para-5 of the
complaint, I do not remember at which date and in which
month the respondent - accused had given the said cheque.
As per my say, the said cheque was given by the respondent -
accused to my wife at the house of accused at Vadodara. On
the receiving the said cheque, there was no any letter written
to the accused that an amount of Rs.18,00,000/- was due and
payable from the accused. There is no evidence to show that
the amount of Rs.18,00,000/- is due from the accused. The
complainant himself stated that there was a cash transaction.
I have not produced by bank statement neither pass-book of
my son has been produced. The complainant himself stated
that the money was lended by me. There was no any receipt or
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promissory note was taken at the time of lending money. I do
not recollect that the accused had paid the amount of
Rs.9,000/- on 11.05.2016; amount of Rs.18,000/- on
11.04.2016; amount of Rs.18,000/- on 08.04.2016 and
amount of Rs.9,000/- on 29.02.2016 by way of different
cheques. The complainant states that I can say after perusing
the bank record. It is true that on various occasion, the
accused had deposited the amount in my account through
cheque. Now I state that the accused had not given any
cheque to me. It is true that I have not stated in my complaint
and chief-examination, the accused had deposited the money
in my account in a piecemeal. On question being raised as to
whether the son viz.Nrupesh had collected any amount from
house of the accused, the complainant replied that I do not
know, that information might be having with the son. The
complainant states that it is not true that the cheque below
Exh.10 was stolen from the house of accused. The
complainant states that he has knowledge about the complaint
registered with the Karelibaugh Police Station for stolen of
cheque. It is true that I was called for recording of statement.
I do not know that the cheque was returned with the
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endorsement of 'stop payment'.
12.3 In further cross-examination, the complainant states that
it is true that Nrupesh used to visit the house of the accused
to meet with her husband. It is true that the murder of
husband of accused was committed in the year 2018 and prior
to two days, Nrupesh went to the house of accused. I do not
know that there was any hot altercation occurred between the
Nrupesh and husband of the accused with the regard to the
amount. It is true that amount of Rs.31,000/- was received by
me on 06.10.2016 by cheque no.622600 and further amount of
Rs.30,000/- received on 08.03.2017 vide cheque no.624997
and amount of Rs.30,000/- as well as Rs.50,000/- received on
17.06.2017 and 05.07.2017. It is true that I had not disclosed
that fact in my complaint.
13. Another witness viz.Vaishali Suresh Vaghela, examined
below Exh.21, who was the Assistant Manager of Indian
Overseas Bank, Karelibaugh, Vadodara, which is the
complainant's bank. From the evidence produced below
Exh.26, it transpired that a communication was addressed by
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the Indian Overseas Bank to the accused on 03.08.2021
informing that the disputed cheque, by mistake the reason of
return is mentioned as 'insufficient fund' insted of 'payment
stopped by drawer'. The next witness, who was examined by
the complainant viz.Vijay Vaijnath Nagane, the Senior
Manager of Indian Bank, Gandhinagar, has produced the
statement of complainant's bank account for the period from
07.06.2021 to 31.07.2021 showing that the cheque was
returned due to fund insufficient from the account of the
respondent - accused.
14. Considering the aforesaid evidence, it transpired that as
per the case of the complainant, the cheque was given by the
respondent accused in the year 2018, which was deposited in
the account in the year 2021. It is admitted by the
complainant that the cheque was blank cheque; the amount
and date was filled up by himself. So far as the case, which
was projected that the amount of Rs.18,00,000/- lended,
which is in cash and states that some of the amount taken
from the savings of the son. In cross-examination, he had
admitted that the son is serving as a driver and his monthly
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income is of Rs.10,000/- and annual income is Rs.1,20,000/-.
From the cross-examination, it further reveals that after 2018,
various amount was transferred in the account of the
complainant by the respondent - accused through different
cheques. This fact is not being disclosed either in the notice,
complaint or in the verification, which was recorded before
the learned trial Court, which shows that the complainant is
hiding the fact and not came with clean hand.
15. So far as the judgment of acquittal, which was passed on
the ground that the endorsement under Section-56 is
concerned, it is required to be noted that in the instant case,
the amount was lended in the year 2017 and in the year 2018,
a blank cheque was issued and thereafter, various amounts
have been deposited in the account of the complainant, which
shows that though the complainant had received the amount,
he did not mention the same or endorsed on the cheque. It is
further required to be noted that in the cross-examination of
the complainant, he admits with regard to the stolen cheque
and a complaint was lodged by the respondent - accused in
the Karelibaugh Police Station, Vadodara. A police officer of
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the Karelibaugh Police Station called the complainant for
recording the statement. Therefore, it reveals that the
disputed cheque was misused by the complainant.
16. Considering the aforesaid facts, the law laid down by the
Hon'ble Apex Court in the case of Basalingappa Vs.
Mudibasappa reported in (2019) 5 SCC 418, the relevant
observation is reproduced herein-below.
8. We having noticed the facts of the case and the evidence
on the record, we need to note the legal principles
regarding nature of presumptions to be drawn under
Section 139 of the Act and the manner in which it can be
rebutted by an accused. We need to look into the relevant
judgments of this Court, where these aspects have been
considered and elaborated. Chapter XIII of the Act, 1881
contains a heading "Special Rules of Evidence". Section
118 provides for presumptions as to negotiable
instruments. Section 118 is as follows:-
"118. Presumptions as to negotiable instruments. --
Until the contrary is proved, the following
presumptions shall be made:--
(a) of consideration --that every negotiable instrument
was made or drawn for consideration, and that every
such instrument, when it has been accepted, indorsed,
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negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration;
(b) as to date --that every negotiable instrument
bearing a date was made or drawn on such date;
XXXXXXXXXXXXXXXXXXXXXXX"
9. Next provision, which needs to be noticed is Section
139, which provides for presumption in favour of holder.
Section 139 lays down:-
"139. Presumption in favour of holder.--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."
10. The complainant being holder of cheque and the
signature on the cheque having not been denied by the
accused, presumption shall be drawn that cheque was
issued for the discharge of any debt or other liability. The
presumption under Section 139 is a rebuttable
presumption. Before we refer to judgments of this Court
considering Sections 118 and 139, it is relevant to notice
the general principles pertaining to burden of proof on an
accused especially in a case where some statutory
presumption regarding guilt of the accused has to be
drawn. A Three-Judge Bench of this Court in Kali Ram Vs.
State of Himachal Pradesh, (1973) 2 SCC 808 laid down
following:-
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"23. ........................One of the cardinal principles which
has always to be kept in view in our system of
administration of justice for criminal cases is that a
person arraigned as an accused is presumed to be
innocent unless that presumption is rebutted by the
prosecution by production of evidence as may show
him to be guilty of the offence with which he is
charged. The burden of proving the guilt of the
accused is upon the prosecution and unless it relieves
itself of that burden, the courts cannot record a finding
of the guilt of the accused. There are certain cases in
which statutory presumptions arise regarding the guilt
of the accused, but the burden even in those cases is
upon the prosecution to prove the existence of facts
which have to be present before the presumption can
be drawn. Once those facts are shown by the
prosecution to exist, the Court can raise the statutory
presumption and it would, in such an event, be for the
accused to rebut the presumption. The onus even in
such cases upon the accused is not as heavy as is
normally upon the prosecution to prove the guilt of the
accused. If some material is brought on the record
consistent with the innocence of the accused which
may reasonably be true, even though it is not positively
proved to be true, the accused would be entitled to
acquittal."
11. This Court in Bharat Barrel & Drum Manufacturing
Company Vs. Amin Chand Pyarelal, (1999) 3 SCC 35 had
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occasion to consider Section 118(a) of the Act. This Court
held that once execution of the promissory note is
admitted, the presumption under Section 118(a) would
arise that it is supported by a consideration. Such a
presumption is rebuttable and defendant can prove the
non-existence of a consideration by raising a probable
defence. In paragraph No.12 following has been laid
down:-
"12. Upon consideration of various judgments as noted
hereinabove, the position of law which emerges is that
once execution of the promissory note is admitted, the
presumption under Section 118(a) would arise that it is
supported by a consideration. Such a presumption is
rebuttable. The defendant can prove the non-existence
of a consideration by raising a probable defence. If the
defendant 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 plaintiff 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 burden upon the
defendant of proving the non-existence of the
consideration can be either direct or by bringing on
record the preponderance of probabilities by reference
to the circumstances upon which he relies. In such an
event, the plaintiff is entitled under law to rely upon all
the evidence led in the case including that of the
plaintiff as well. In case, where the defendant fails to
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discharge the initial onus of proof by showing the non-
existence of the consideration, the plaintiff would
invariably be held entitled to the benefit of
presumption arising under Section 118(a) in his favour.
The court may not insist upon the defendant to
disprove the existence of consideration by leading
direct evidence as the existence of negative evidence is
neither possible nor contemplated and even if led, is to
be seen with a doubt. The bare denial of the passing of
the consideration apparently does not appear to be any
defence. Something which is probable has to be
brought on record for getting the benefit of shifting the
onus of proving to the plaintiff. To disprove the
presumption, the defendant has to bring on record
such facts and circumstances upon consideration of
which the court may either believe that the
consideration did not exist or its non- existence was so
probable that a prudent man would, under the
circumstances of the case, shall act upon the plea that
it did not exist......"
12. Justice S.B. Sinha in M.S. Narayana Menon Alias Mani
Vs. State of Kerala and Another, (2006) 6 SCC 39 had
considered Sections 118(a), 138 and 139 of the Act, 1881. It
was held that presumptions both under Sections 118(a)
and 139 are rebuttable in nature. Explaining the
expressions "may presume" and "shall presume" referring
to an earlier judgment, following was held in paragraph
No.28:-
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"28. What would be the effect of the expressions "may
presume", 'shall presume" and "conclusive proof" has
been considered by this Court in Union of India v.
Pramod Gupta, (2005) 12 SCC 1, in the following
terms: (SCC pp. 30-31, para 52) "It is true that the
legislature used two different phraseologies 'shall be
presumed' and 'may be presumed' in Section 42 of the
Punjab Land Revenue Act and furthermore although
provided for the mode and manner of rebuttal of such
presumption as regards the right to mines and
minerals said to be vested in the Government vis-à-vis
the absence thereof in relation to the lands presumed
to be retained by the landowners but the same would
not mean that the words 'shall presume' would be
conclusive. The meaning of the expressions 'may
presume' and 'shall presume' have been explained in
Section 4 of the Evidence Act, 1872, from a perusal
whereof it would be evident that whenever it is
directed that the court shall presume a fact it shall
regard such fact as proved unless disproved. In terms
of the said provision, thus, the expression 'shall
presume' cannot be held to be synonymous with
'conclusive proof'."
13. It was noted that the expression "shall presume"
cannot be held to be synonymous with conclusive proof.
Referring to definition of words "proved" and "disproved"
under Section 3 of the Evidence Act, following was laid
down in paragraph No.30:
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"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 does 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."
14. This Court held that what is needed is to raise a
probable defence, for which it is not necessary for the
accused to disprove the existence of consideration by way
of direct evidence and even the evidence adduced on
behalf of the complainant can be relied upon. Dealing with
standard of proof, following was observed in paragraph
No.32:-
"32. The standard of proof evidently is preponderance
of probabilities. Inference of preponderance of
probabilities can be drawn not only from the materials
on record but also by reference to the circumstances
upon which he relies."
15. In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde,
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(2008) 4 SCC 54, this Court held that 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. Following was laid down in Paragraph No.32:-
"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 an accused and that of the
prosecution in a criminal case is different."
16. This Court again reiterated that 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 an accused is "preponderance of probabilities".
In paragraph No.34, following was laid down:-
"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 an 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."
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17. In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC
513, this Court again examined as to when complainant
discharges the burden to prove that instrument was
executed and when the burden shall be shifted. In
paragraph Nos. 18 to 20, following has been laid down:-
"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 him 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 any 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"
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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. When a presumption is
rebuttable, it only points out that the party on whom
lies the duty of going forward with evidence, on the
fact presumed and when that party has produced
evidence fairly and reasonably tending to show that the
real fact is not as presumed, the purpose of the
presumption is over.
20. ........................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 non-existence was so probable that a
prudent man would under the circumstances of the
case, act upon the plea that they did not exist..............."
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18. A Three-Judge Bench of this Court in Rangappa Vs. Sri
Mohan, (2010) 11 SCC 441 had occasion to elaborately
consider provisions of Sections 138 and 139. In the above
case, trial court had acquitted the accused in a case
relating to dishonour of cheque under Section 138. The
High Court had reversed the judgment of the trial court
convicting the accused. In the above case, the accused had
admitted signatures on the cheque. This Court held that
where the fact of signature on the cheque is
acknowledged, a presumption has to be raised that the
cheque pertained to a legally enforceable debt or liability,
however, this presumption is of a rebuttal nature and the
onus is then on the accused to raise a probable defence. In
Paragraph No.13, following has been laid down:-
"13. The High Court in its order noted that in the
course of the trial proceedings, the accused had
admitted that the signature on the impugned cheque
(No. 0886322 dated 8-2-2001) was indeed his own.
Once this fact has been acknowledged, Section 139 of
the Act mandates a presumption that the cheque
pertained to a legally enforceable debt or liability. This
presumption is of a rebuttal nature and the onus is
then on the accused to raise a probable defence. With
regard to the present facts, the High Court found that
the defence raised by the accused was not probable."
19. After referring to various other judgments of this
Court, this Court in that case held that the presumption
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mandated by Section 139 of the Act does indeed include
the existence of a legally enforceable debt or liability,
which, of course, is in the nature of a rebuttable
presumption. In paragraph No.26, following was laid
down:-
"26. 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, (2008) 4 SCC 54 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. As noted in the citations, this is of course in
the nature of a rebuttable presumption and it is open to
the accused to raise a defence wherein the existence of
a legally enforceable debt or liability can be contested.
However, there can be no doubt that there is an initial
presumption which favours the complainant."
20. Elaborating further, this Court held that Section 139 of
the Act is an example of a reverse onus and the test of
proportionality should guide the construction and
interpretation of reverse onus clauses on the defendant-
accused and the defendant- accused cannot be expected to
discharge an unduly high standard of proof. In paragraph
Nos. 27 and 28, following was laid down:-
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"27. Section 139 of the Act is an example of a reverse
onus clause that has been included in furtherance of
the legislative objective of improving the credibility of
negotiable instruments. While Section 138 of the Act
specifies a strong criminal remedy in relation to the
dishonour of cheques, the rebuttable presumption
under Section 139 is a device to prevent undue delay in
the course of litigation. 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
defendant-accused cannot be expected to discharge an
unduly high standard of proof."
17. Considering the above settled position of law as well as
considering the evidence on record, this Court comes to the
conclusion that the evidence, which was led before the Court
that an amount of Rs.18,00,000/- in cash was lended to the
respondent - accused, is not sufficiently established by the
appellant - original complainant and the respondent - accused
succeeded in rebutting the presumption, which is in favour of
the complainant. There is no any perversity found in the
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judgment and order of acquittal passed by the learned trial
Court by acquitting the respondent - accused.
18. Resultantly, the appeal fails and is hereby dismissed. The
judgment and order dated 23.08.2023 passed by the learned
5th Additional Chief Judicial Magistrate, Gandhinagar in
Criminal Case No.4603 of 2021 is hereby confirmed. Record
and proceedings be sent back to the concerned Court
forthwith.
(M. K. THAKKER,J)
A. B. VAGHELA
