Madhya Pradesh High Court
Dheerendra Singh vs Mahendra Singh on 17 May, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
Criminal Appeal No. 2423/2015
DHEERENDRA SINGH
Versus
MAHENDRA SINGH
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Appearance:
Shri Akhil Singh- Advocate for the appellant.
Shri Aniket Tiwari -Advocate for the respondent.
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RESERVED ON : 27.03.2025
PRONOUNCED ON : 17.05.2025
This appeal having been heard and reserved for judgment, coming on for pro-
nouncement on this day, the court passed the following
ORDER
Appellant/complainant has preferred this leave to appeal under Section
378(4) of Code of Criminal Procedure, 1973, against judgment dated 13.03.2015
passed by Judicial Magistrate First Class, Beohaari, District-Shahdol (M.P.) in
criminal case No.70/2013, whereby respondent/accused has been acquitted of
offence punishable under Section 138 of NI Act relating to issuance of cheque of
Rs.21,50,000/-.
2. Leave to appeal was granted by this Court vide order dated 03.09.2015.
3. Brief facts relevant for the disposal of this appeal are that
appellant/complainant Dheerendra Singh filed a complaint under Section 138 of
N.I. Act on the ground that he had advanced an amount of Rs. 21,50,000/- to
respondent/accused and that was not refunded by the respondent/accused. Later on,
respondent/accused gave appellant/complainant account payee cheque No.216084
dated 07.10.2012 of an amount of Rs. 21,50,000/- for discharge of aforesaid
liability. When appellant/complainant presented aforesaid cheque for payment,
then, the same was dishonored on the ground that there is insufficient amount in
the bank account of respondent/accused. Thereafter, appellant/complainant issued
a notice to respondent/accused but despite receipt of the same, respondent/accused
did not pay the amount.
4. Learned counsel for the appellant submits that in the instant case, date,
signature, hand writing of cheque (Ex.P/1) are not in dispute. The only defence
taken by the respondent/accused is that aforesaid cheque was lost when the bag of
respondent, containing aforesaid blank cheque with signature was lost. Learned
counsel for the appellant also submits that there is nothing on record to show that
any FIR was lodged by respondent with respect to loss of aforesaid bag containing
cheque (Ex.P/1) and other documents. Further, after referring to non-applicant
witness No.2, it is urged that witness has admitted that Ex.D/1's complaint was not
found to have been received in police station. Learned Trial Court has wrongly
mentioned in paras 8 and 9 of judgment that appellant failed to explain the source
of amount properly. It is also urged that appellant has given Rs.21,50,000/- in cash
from PW-2, who got encashed his FD of an amount of Rs.6,00,000/-. Further, after
referring to John K. Abraham Vs. Simon C.Abraham and Another, (2014) 2
SCC 236, it is urged that in aforesaid case, beside issue pertaining to source of
fund, other issues were also involved. Further, after referring to para 10 of PW-1
(complainant), it is also urged that therein source of fund has been explained by
complainant. Further, as signature on cheque was not in dispute, therefore, in view
of presumption under Section 139 of NI Act, complainant is not required to prove
anything else. With respect to aforesaid submissions, learned counsel for the
appellant has relied upon P.Rasiya Vs. Abdul Nazar and Anr., Criminal appeal
No. 1233-1235 of 2022, decided by Hon'ble Apex Court on 12.08.2022 and
Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 and Bhupesh Rathod Vs.
Dayashankar Prasad Chaurasia and another, (2022) 1 SCC (Cri) 514. On
above grounds, it is urged that appeal filed by the appellant be allowed and
impugned judgment passed by the Trial Court be set aside.
5. Learned counsel on behalf of respondent/accused submits that loss of bag,
which contained cheque (Ex.P/1), was duly reported to police station on
15.08.2012 vide Ex.D/1's complaint. It is also urged that appellant/complainant has
failed to prove source of amount of Rs.21,50,000/-. Neither in complaint nor in
evidence adduced by appellant, details of loan and FD have been mentioned.
Appellant also did not clarify as to in whose presence aforesaid amount was given
to respondent. As per appellant's case, the amount is alleged to have been given in
two installments in the year 2008-2009. But it has not been clarified as to when
from evidence as to from which bank and how much loan was taken. Testimonies
of PW-1 and PW-2 are contradictory with respect to handing over of cheque
(Ex.P/1) to complainant. PW-2 is an interested witness. Further, learned counsel
for the respondent after referring and relying upon Dattatraya Vs. Sharanappa,
(2024) 8 SCC 573, submits that in para 28, 30 and 32 of aforesaid judgment, it has
been mentioned as to how presumption under Section 139 of NI Act can be
rebutted. On above grounds, it is urged that judgment passed by the Trial Court is
just and proper and no interfere is required. Hence, appellant's appeal be
dismissed.
6. Heard. Perused record of the case.
Analysis and findings:-
7. There can be no dispute that in matters relating to alleged offences under
Section 138 of the N.I. Act, the complainant has only to establish that the cheque
was genuine, presented within time and upon it being dishonoured, due notice was
sent within 30 days of such dishonor, to which re-payment must be received within
15 days, failing which a complaint can be preferred by the complainant within one
month as contemplated under Section 142(1)(b) of the Act.
8. On the other hand, the foremost defence available to the accused is to deny
the very liability to pay the amount for which the cheque was issued on the ground
that it was not a 'legally enforceable debt' under the Act.
9. Perusal of submissions of both the parties as well as impugned judgment
reveals that learned Trial Court has acquitted respondent/accused primarily on the
Section 139 read with Section 118 of N.I. Act and appellant/complainant failed to
establish the source of amount of Rs. 21,50,000/-, that was allegedly advanced to
respondent/accused.
10. Therefore, primary question for determination before this Court is as to
whether learned Trial Court was justified in acquitting respondent/accused on
aforesaid ground for the offence under Section 138 of N.I. Act. With respect to
aforesaid, basic questions to be addressed to are twofold: as to whether the
appellant/complainant had established the ingredients of Section 118 and 139 of
N.I. Act, so as to justify drawing of the presumption envisaged therein; and if so,
as to whether the respondent/accused had been able to displace such presumption
and to establish a probable defence whereby, the onus would again shift to the
complainant.
11. Before proceeding further, it would be appropriate to refer the relevant
provisions contained in Sections 118 and 139 of N.I. Act and they are as follows:-
"118. Presumption 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, 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 endorsements-hat the endorsements 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;
139. Presumption in favour of holder - It shall be presumed, unless
the contrary is proved, that the holder is a cheque received the cheque
of the nature referred to in section 138 for the discharge, in whole or
in part, if any debt or other liability."
12. So far as the question of existence of basic ingredients for drawing of
presumption under Sections 118 and 139 of N.I. Act is concerned, evidently
respondent/accused has admitted his signature on cheque Ex. P/1 and it is also not
in dispute that aforesaid cheque has been drawn on a bank account maintained by
the respondent/accused. The aforesaid cheque was presented in the bank concerned
within the period of its validity and was returned unpaid for the reason that there
was insufficient amount in the account. All the basis ingredients of Section 138 of
N.I. Act as also of Sections 118 and 139 of N.I.Act are apparent on the face of the
record. The trial Court had also consciously taken note of these facts and had
drawn the requisite presumption. Therefore, it is required to be presumed that the
cheque in question was drawn for consideration and the holder of the cheque i.e.
the complainant received the same in discharge of an existing debt. The onus,
therefore, shifts on the respondent/accused to establish a probable defence so as to
rebut such a presumption.
Scope of presumption under Section 139 and 118 of N.I. Act and the nature
and extent of evidence required to rebut the same:-
13. Before discussing and examining the facts of the case/evidence on merit, it
would be appropriate to refer relevant pronouncements pertaining to aforesaid.
14. A three judge benchs of Hon'ble Apex Court in Rangappa Vs. Sri Mohan,
(2010)11 SCC 441, while discussing and examining the scope of presumption
under section 118 and 139 of N.I. Act and nature of evidence required to rebut the
same, has held as under:-
"3. The legal question before us pertains to the proper interpretation
of Section 139 of the Act which shifts the burden of proof on to the
accused in respect of cheque bouncing cases. More specifically, we
have been asked to clarify the manner in which this statutory
presumption can be rebutted.
16. All of these circumstances led the High Court to conclude that the
accused had not raised a probable defence to rebut the statutory
presumption. It was held that:
"6. Once the cheque relates to the account of the accused
and he accepts and admits the signatures on the said cheque,
then initial presumption as contemplated under Section 139
of the Negotiable Instruments Act has to be raised by the
court in favour of the complainant. The presumption referred
to in Section 139 of the NI Act is a mandatory presumption
and not a general presumption, but the accused is entitled to
rebut the said presumption.
What is required to be established by the accused in order
to rebut the presumption is different from each case under
the given circumstances. But the fact remains that a mere
plausible explanation is not expected from the accused and it
must be more than a plausible explanation by way of rebuttal
evidence. In other words, the defence raised by way of
rebuttal evidence must be probable and capable of being
accepted by the court.
The defence raised by the accused was that a blank
cheque was lost by him, which was made use of by the
complainant. Unless this barrier is crossed by the accused,
the other defence raised by him whether the cheque was
issued towards the hand loan or towards the amount spent by
the complainant need not be considered...."
Hence, the High Court concluded that the alleged discrepancies on
part of the complainant which had been noted by the trial court were
not material since the accused had failed to raise a probable defence
to rebut the presumption placed on him by Section 139 of the Act.
Accordingly, the High Court recorded a finding of conviction.
19. It has been contended on behalf of the appellant-accused that the
presumption mandated by Section 139 of the Act does not extend to the
existence of a legally enforceable debt or liability and that the same
stood rebutted in this case, keeping in mind the discrepancies in the
complainant's version. It was reasoned that it is open to the accused to
rely on the materials produced by the complainant for disproving the
existence of a legally enforceable debt or liability. It has been
contended that since the complainant did not conclusively show
whether a debt was owed to him in respect of a hand loan or in
relation to expenditure incurred during the construction of the
accused's house, the existence of a legally enforceable debt or liability
had not been shown, thereby creating a probable defence for the
accused.
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 Vs. Dattatraya G. Hegde, (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.
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 accused/defendant cannot be expected to discharge an unduly high
standard or proof.
28. 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."
15. Hon'ble Apex Court in Rohitbhai Jivanlal Patel Vs. State of Gujarat and
another, (2019) 18 SCC 106 has also discussed the issue and has held as under:-
"16. In Rangappa v. Sri Mohan : (2010) 11 SCC 441, this Court has
reiterated and summarised the principles relating to presumptions
under Sections 118 and 139 of the NI Act and rebuttal thereof in the
following:-
"26. In the 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 may not
be correct. However, this does not in any way cast doubt on
the correctness of the decision in that case since it is based
on the specific facts and circumstances therein. As noted in
the citations, this is of course in the nature of a rebuttal
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.
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.
28. 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."
17. On the aspects relating to preponderance of probabilities, the
accused has to bring on record such facts and such circumstances
which may lead the Court to conclude either that the consideration
did not exist or that its non- existence was so probable that a prudent
man would, under the circumstances of the case, act upon the plea
that the consideration did not exist. This Court has, time and again,
emphasized that though there may not be sufficient negative evidence
which could be brought on record by the accused to discharge his
burden, yet mere denial would not fulfill the requirements of rebuttal
as envisaged under Section 118 and 139 of the NI Act. This court
stated the principles in the case of Kumar Exports Vs. Sharma
Carpets, (2009) 2 SCC 513 as follows:
"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 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. 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.
21. The accused has also an option to prove the non-
existence of consideration and debt or liability either by
letting in evidence or in some clear and exceptional cases,
from the case set out by the complainant, that is, the
averments in the complaint, the case set out in the statutory
notice and evidence adduced by the complainant during the
trial. Once such rebuttal evidence is adduced and accepted
by the court, having regard to all the circumstances of the
case and the preponderance of probabilities, the evidential
burden shifts back to the complainant and, therefore, the
presumptions under Sections 118 and 139 of the Act will
not again come to the complainant's rescue."
18. In the case at hand, even after purportedly drawing the
presumption under Section 139 of the NI Act, the Trial Court
proceeded to question the want of evidence on the part of the
complainant as regards the source of funds for advancing loan to the
accused and want of examination of relevant witnesses who allegedly
extended him money for advancing it to the accused. This approach of
the Trial Court had been at variance with the principles of
presumption in law. After such presumption, the onus shifted to the
accused and unless the accused had discharged the onus by bringing
on record such facts and circumstances as to show the preponderance
of probabilities tilting in his favour, any doubt on the complainant's
case could not have been raised for want of evidence regarding the
source of funds for advancing loan to the accused-appellant. The
aspect relevant for consideration had been as to whether the accused-
appellant has brought on record such facts /material/ circumstances
which could be of a reasonably probable defence
20. Hereinabove, we have examined in detail the findings of the trial
court and those of the High Court and have no hesitation in
concluding that the present one was clearly a case where the decision
of the trial court suffered from perversity and fundamental error of
approach; and the High Court was justified in reversing the judgment
of the trial court. The observations of the trial court that there was no
documentary evidence to show the source of funds with the respondent
to advance the loan, or that the respondent did not record the
transaction in the form of receipt of even kachcha notes, or that there
were inconsistencies in the statement of the complainant and his
witness, or that the witness of the complaint was more in the know of
facts, etc. would have been relevant if the matter was to be examined
with reference to the onus on the complaint to prove his case beyond
reasonable doubt. These considerations and observations do not stand
in conformity with the presumption existing in favour of the
complainant by virtue of Sections 118 and 139 of the NI Act. Needless
to reiterate that the result of such presumption is that existence of a
legally enforceable debt is to be presumed in favour of the
complainant. When such a presumption is drawn, the factors relating
to the want of documentary evidence in the form of receipts or
accounts or want of evidence as regards source of funds were not of
relevant consideration while examining if the accused has been able to
rebut the presumption or not. The other observations as regards any
variance in the statement of complainant and witness; or want of
knowledge about dates and other particulars of the cheques; or
washing away of the earlier cheques in the rains though the office of
the complainant being on the 8th floor had also been irrelevant
factors for consideration of a probable defence of the appellant.
Similarly, the factor that the complainant alleged the loan amount to
be Rs 22,50,000 and seven cheques being of Rs 3,00,000 each leading
to a deficit of Rs 1,50,000, is not even worth consideration for the
purpose of the determination of real questions involved in the matter.
May be, if the total amount of cheques exceeded the alleged amount of
loan, a slender doubt might have arisen, but, in the present matter, the
total amount of 7 cheques is lesser than the amount of loan.
Significantly, the specific amount of loan (to the tune of Rs 22,50,000)
was distinctly stated by the appellant-accused in the aforesaid
acknowledgment dated 21-3-2017.
21. On perusing the order of the trial court, it is noticed that the trial
court proceeded to pass the order of acquittal on the mere ground of
"creation of doubt". We are of the considered view that the trial
court appears to have proceeded on a misplaced assumption that by
mere denial or mere creation of doubt, the appellant had successfully
rebutted the presumption as envisaged by Section 139 of the NI Act. In
the scheme of the NI Act, mere creation of doubt is not sufficient.
22. The result of discussion in the foregoing paragraphs is that the
major considerations on which the trial court chose to proceed clearly
show its fundamental error of approach where, even after drawing the
presumption, it had proceeded as if the complainant was to prove his
case beyond reasonable doubt. Such being the fundamental flaw on
the part of the trial court, the High Court cannot be said to have acted
illegally or having exceeded its jurisdiction in reversing the judgment
of acquittal. As noticed hereinabove, in the present matter, the High
Court has conscientiously and carefully taken into consideration the
views of the trial court and after examining the evidence on record as
a whole, found that the findings of the trial court are vitiated by
perversity. Hence, interference by the High Court was inevitable;
rather had to be made for just and proper decision of the matter.
23. For what has been discussed hereinabove, the findings of the High
Court convicting the appellant-accused for the offence under Section
138 of the NI Act deserve to be, and are, confirmed."
16. Hon'ble Apex Court in Dattatraya Vs. Sharanappa, (2024) 8 SCC 573,
has also examined the nature and extent of presumption as well as nature of
evidence required for rebutting the presumption and has held as under:-
"19. Chapter XIII of the NI Act 1881, of which Section 118 is a
part, lays down special rules for evidence to be adduced within the
scheme of the Act herein. As the text of the said provision showcases,
it raises a rebuttable presumption as against the drawer to the extent
that the concerned negotiable instrument was drawn and subsequently
accepted, indorsed, negotiated, or transferred for an existing
consideration, and the date so designated on such an instrument is the
date when the concerned negotiable instrument was drawn. It is also
further presumed that the same was transferred before its maturity and
that the order in which multiple endorsements appear on such an
instrument, that is the deemed order thereon. Lastly, the holder of a
negotiable instrument is one in its due course, subject to a situation
where the concerned instrument while being obtained from a lawful
owner and from his or her lawful custody thereof through undertaking
of an offence as contemplated under any statute or through the means
of fraud, the burden to prove him or her being a holder in due course,
instead, lies upon such a holder.
20. Accordingly, to begin with, the bare provision of Section 139 of the
NI Act 1881 is reproduced herein below:
"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
section138 for the discharge, in whole or in part, of any
debt or other liability."
The aforesaid presumption entails an obligation on the court
conducting the trial for an offence under Section 138 of the NI Act
1881 to presume that the cheque in question was issued by the drawer
or accused for the discharge of a particular liability. The use of
expression "shall presume" ameliorates the conundrum pertaining to
the right of the accused to present evidence for the purpose of
rebutting the said presumption. Furthermore, the effect of such
presumption is that, upon filing of the complaint along with relevant
documents, thereby prima facie establishing the case against the
drawer, the onus of proof shifts on the drawer or accused to adduce
cogent material and evidence for rebutting the said presumption, and
as established in Laxmi Dyechem v. State of Gujarat and Others,
(2012) 13 SCC 375 based on preponderance of probabilities.
21. While describing the offence envisaged under Section 138 of
the NI Act 1881 as a regulatory offence for largely being in the nature
of a civil wrong with its impact confined to private parties within
commercial transactions, the 3-Judge Bench in the decision of
Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 highlighted Section
139 of the NI Act 1881 to be an example of a reverse onus clause. This
is done so, as the Court expounds, in the light of Parliament's intent,
which can be culled out from the peculiar placing of act of dishonour
of cheque in a statute having criminal overtones. The underlying
object of such deliberate placement is to inject and enhance credibility
of negotiable instruments. Additionally, the reverse onus clause serves
as an indispensable "device to prevent undue delay in the course of
litigation". While acknowledging the test of proportionality and
having laid the interpretation of Section 139 of the NI Act 1881 hereof,
it was further held that an accused cannot be obligated to rebut the
said presumption through an unduly high standard of proof. This is in
light of the observations laid down by a co-ordinate Bench in Hiten P.
Dalal v. Bratindranath Banerjee,(2001) 13 SCC 375 whereby it was
clarified that the rebuttal ought not to be undertaken conclusively by
an accused, which is reiterated as follows:
"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.
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".
22. Therefore, it may be said that the liability of the defence in cases
under Section 138 of the NI Act 1881 is not that of proving its case
beyond reasonable doubt.
23. In light of the aforesaid discussion, and as underscored by this
Court recently in the decision of Rajesh Jain v. Ajay Singh, (2023) 10
SCC 148 an accused may establish non-existence of a debt or liability
either through conclusive evidence that the concerned cheque was not
issued towards the presumed debt or liability, or through adduction of
circumstantial evidence vide standard of preponderance of
probabilities.
24. Since a presumption only enables the holder to show a prima facie
case, it can only survive before a court of law subject to contrary not
having been proved to the effect that a cheque or negotiable
instrument was not issued for a consideration or for discharge of any
existing or future debt or liability. In this backdrop, it is pertinent to
make a reference to a decision of 3-Judge Bench in Bir Singh v.
Mukesh Kumar,(2019) 4 SCC 197
which went on to hold that if a signature on a blank cheque stands
admitted to having been inscribed voluntarily, it is sufficient to trigger
a presumption under Section 139 of the NI Act 1881, even if there is
no admission to the effect of execution of entire contents in the cheque.
27. A comprehensive reference to the Sections 118, 139 and 140 of the
NI Act 1881 gives birth to a deemed fiction which was also articulated
by this Court in K.N. Beena v. Muniyappan, (2001) 8 SCC 458 as
follows:
"6..........Under section 118, unless the contrary was
proved, it is to be presumed that the negotiable instrument
(including a cheque) had been made or drawn for
consideration. Under section 139 the court has to presume,
unless the contrary was proved, that the holder of the
cheque received the cheque for discharge, in whole or in
part, of a debt or liability. Thus, in complaints under
section 138, the court has to presume that the cheque had
been issued for a debtor's liability. This presumption is
rebuttable. However, the burden of proving that a cheque
had not been issued for a debt or liability is on the accused.
The Supreme Court in the case of Hiten P. Dalal v.
Bratindranath Banerjee (2001) 6 SCC 16 has also taken
an identical view.
28. Furthermore, on the aspect of adducing evidence for rebuttal of
the aforesaid statutory presumption, it is pertinent to cumulatively
read the decisions of this Court in Rangappa (supra) and Rajesh Jain
(supra) which would go on to clarify that accused can undoubtedly
place reliance on the materials adduced by the complainant, which
would include not only the complainant's version in the original
complaint, but also the case in the legal or demand notice,
complainant's case at the trial, as also the plea of the accused in the
reply notice, his Section 313 CrPC 1973 statement or at the trial as to
the circumstances under which the promissory note or cheque was
executed. The accused ought not to adduce any further or new
evidence from his end in said circumstances to rebut the concerned
statutory presumption concerned."
17. From aforesaid pronouncements, the law on the point may be summarized as
under:-
(i) That, the presumption mandated by Section 139 of N.I. Act,
includes a presumption that there exists a legally enforceable
debt or liability. Thus, there is an initial presumption which
favours complainant;
(ii) That, the aforesaid presumption is rebuttable;
(iii) That, the standard of proof required to rebut the presumption is
that of " preponderance of probabilities";
(iv) That, an accused is not required to adduce any independent
evidence to rebut the presumption. It can rebut the
presumption from evidence on record, including that adduced
by the complainant.
FACTUAL ANALYSIS OF THE CASE:-
18. Perusal of submissions of learned counsel for the appellant/complainant
reveals that primarily appellant/complainant's case is that as respondent/accused
has admitted his signature on Ex. P/1's cheque, therefore, in view of presumption
under Sections 118 and 139 of N.I. Act, respondent/accused was required to rebut
the presumption and as respondent/accused has failed to rebut the presumption,
therefore, learned trial Court has wrongly acquitted respondent/accused.
19. On the other hand, perusal of submissions of learned counsel for the
respondent/accused reveals that primarily counsel for the respondent/accused has
advanced twofold submissions on behalf of the respondent/accused i.e. one is that
Ex. P/1's cheque was lost from respondent/accused while he was going from
Shahdol to Beohari and second one is, that appellant/complainant has failed to
establish/prove source of amount allegedly advanced to respondent/accused.
20. In the instant case, respondent/accused's signature on Ex. P-1's cheque are
not in dispute and respondent/accused has not denied his signature on Ex.P/1's
cheque. In view of Sections 118 and 139 of N.I. Act as well as principles laid down
by Hon'ble Apex Court in pronouncements as referred in preceding paras, initial
presumption is to be raised/drawn in favour of appellant/complainant. Therefore,
question arises as to whether respondent/accused has succeeded in rebutting the
aforesaid presumption.
21. Primary defence of respondent/accused is that he had lost the P/1's cheque
while he was going from Shahdol to Beohari. Therefore, question arises as to
whether respondent/accused has succeeded in establishing that Ex. P/1's cheque
was lost while respondent/accused was going from Shahdol to Beohari or
otherwise also.
22. Perusal of cross-examination of appellant/complainant Dheerendra Singh,
given to appellant/complainant Dheerendra Singh that Ex. P/1's cheque was lost
while respondent/accused was going from Shahdol to Beohari. On the contrary, in
para 11 of cross-examination of appellant/complainant Dheerendra Singh, a
suggestion has been given on behalf of respondent/accused to the effect that
appellant/complainant, after having received accused's cheque from someone else,
had filled arbitrary amount therein and had filed case before this Court. Further,
para 8 of appellant/complainant's cross-examination reveals that Ex. P/1's cheque
was given by respondent/accused in the presence of Upendra Singh and it was
given at house of respondent/accused in Beohari.
23. Similarly, perusal of cross- examination of appellant/complainant witness
Upendra Singh (PW/2) reveals that no such suggestion has been given to the
witness that Ex. P/1's cheque was lost while respondent/accused was going from
Shahdol to Beohari. The only suggestion given on behalf of respondent/accused to
complainant witness Upendra Singh in para 5 is that no cheque was given by
respondent to Dheerendra Singh in his presence and this suggestion has been
denied by the witness.
24. Respondent/accused has not explained that, if Ex. P/1's cheque was lost,
then, why no such specific suggestion has been given to appellant/complainant and
his witness and why such suggestion has been given to appellant/complainant that
he received respondent/accused's cheque from someone else and thereafter filled
arbitrary amount in the same.
25. Further, with respect to the defence of respondent/accused that the cheque
was lost, it would be appropriate to refer and reproduce relevant paras of
respondent/accused Mahendra Singh's deposition which are as under:-
eq[;ijh{k.k
"01- esjs }kjk izdj.k es a fnukad 15-08-2012 O;kSgkjh Fkkuk es a pSd dzekad
216084 ,oa nLrkosts xqt tkus ds lEcU/k es a dh xbZ fjiksVZ dh f}rh;
izfr iz-Mh-&1 gSA ftldss , ls , Hkkx ij mlds gLrk{kj gSA Fkkuk C;ksgkjh
esa ,oa lsUV~zy e-iz- xzkeh.k cSad "kk[kk C;kSgkjh }kjk pSd dzekad 312913 ls
312921 rd esa LVki isesUV yxk;s tkus lEca/kh "kk[kk izca/kd "kk[kk
C;ksgkjh }kjk izkIr i= dh ewy izfr tks iz-ih-02 gSA izdj.k esa mlds is"k
fd;k x;k gSA og ifjoknh /khjsUnz flag dks tkurk gSA /khjsUnz flag jkeyyk
flag ds fj'rsnkj gS ftUgsas og tkurk gSA izdj.k esa izLrqr mldk pSd xqe
x;k Fkk ftlds lEcU/k esa mlds }kjk Fkkuk esa 15-08-12 dks fjiksVZ djkbZ
xbZ Fkh mDr pSd ds lkFk mldk LVkai isij] oksVj vkbZ-Mh-] mlds lkFk
vkSj dqN ,d pSd xzkeh.k cSad dk Fkk tks pSd mldk xqe x;k Fkk mleasa
ek= esjs gLrk{kj Fks mls ,d ikVhZ dk fglkc djuk FkkA vFkkZr iSesUV
'kgMksy es a djuk FkkA tc fglkc fdrkc gksus yxk mlesa jkf'k Hkjus dks
gqvk rks fglkc lEca/kh esjh vkSj dqN iphZ gS rks eS cksyk fd C;kSgkjh pydj
fglkc djrs gSA fQj og mUgh ds lkFk 'kgMksy ls C;kSgkjh vk jgk Fkk tc
og C;kSgkjh vk;k rks ns[kk fd ftlesa mlds mDr lHkh dkxtkr j[ks Fks og
mlds dkxtkr eksVjlkbZfdy esas ugha FksA fQj og nwljs fnu 'kgMksy
vius dejk x;k rc mldk mDr cSx lfgr nLrkost ugha feys rks og
C;kSgkjh vkdj fnukad 15-08-12 dks Fkkuk esa vkdj fjiksVZ fd;k A
izfrijh{k.k }kjk Jh iznhi flag vf/koDrk okLrs ifjoknh
03- eksVj lkbZfdy dkSu dh Fkh D;k uEcj FkkA mls /;ku ugha gSA mDr
eksVjlkbZfdy jkosUnz flag dh FkhA xkMh jkosUnz flag pyk jgk FkkA gS.M
cSx dkys jax dk Fkk ftlesa pSd j[ks gq;s FksA gS.McSx esa eksVj lkbZfdy es
idM+dj gh cSBk FkkA jkosUnz falag 'kgMksy mlds ikl fglkc djkus vk;s Fks
ml le; og 'kgMksy esas Fkk ml le; mudk Hkh dke dk iSlk ckadh FkkA
jkosUnz flag mlds ikl djhc rhu cts igqsps FksA og ikap cts ds ikl
O;kSgkjh ds fy;s fnukad 13-08-12 dks 'kgMksy ls fudyk Fkk mls /;ku ugha
gS fd fdl fdl gkFk esa cSx j[kk FkkA mls ;g Hkh /;ku ugha gS fd mldk
cSad 'kgMksy essa fxj x;k fd C;kSgkjh esa ;k t;flaguxj es a fxj x;k FkkA
C;kSgkjh jkf= lk<s+ lkr cts ds djhc igaqpk rc ns[kk fd mlds gkFk esa cSx
ugha FkkA mlus fjiksVZ dks VkbZi 'kgMksy esa djk;k FkkA mlus ?kVuk dh
fjiksVZ ''kgMksy eas ugh fd;k A og 'kgMksy fjiksVZ fy[kkus x;k gh ugha
vkSj u gh t;flag uxj x;k vkSj ?kVuk fnukad vkSj o mlds nwljs fnu
Hkh Fkkuk C;kSgkjh es a fjiksVZ ugha fy[kk;k A ;g lgh gS fd bl ckr ls
v"oLr ugha Fkk fd mldk cSx fxj ds dgka xqe x;k gSA mldk cSx
'kgMksy es a fxjk gh ugha blfy;s mDr fjiksVZ 'kgMksy es a ugha djk;k A
t;flag uxj esa Hkh cSx dk fxjuk iDdk ugha Fkk blfy;s ogka ij fjiksVZ
ugha fy[kkbZA C;kSgkjh esa izos'k djrs le; gh dgha ij fxjk blfy;s C;kSgkjh
esa fjiksVZ djkbZ A lgh gS es a bl ckr ls v'koLr gksus ds ckn fd cSx
'kgMksy o t;flag uxj es a ugh fxjk gSA cSx C;kSgkjh es a fxjk gSA mlds
ckn Hkh C;kSgkjh Fkkuk esa ?kVuk fnukad dks fjiksVZ ugha dh A lk{kh us Lor%
dgk fd cSx t;flag uxj vkSj 'kgMksy esa <w<us ds ckn C;kSgkjh eas fjiksVZ
fd;k tc cSx ugha feyk rks fnukad 15-08-12 dks fjiksVZ dh xbZA ;g lgh
gS fd mlds }kjk iz-Mh-&2 ls lEcaf/kr cSx ess a tks pSd dza- ds fy;s LVki
iSesUV fnukad 3-3-15 dks yxok;k Fkk og lsUV~zy e-iz-xzkeh.k cSad "kk[kk U;w
cjkS/kk C;kSgkjh ds pSd cqd ls tkjh fd;s x;s pSd ds lEc/k esaA ;g lgh gS
fd fnukad 3-3-15 dks gh iz-Mh-2 ds nLrkost esa LVki iSesUV n'kkZ;k x;k
ys[k fd;k x;k gSA lk{kh us Lor% dgk fd mlus 3-3-15 dks mldk izek.k
i= izkIr fd;k gS LVki iSesUV mlh fnu djk fy;k Fkk tc dsl nk;j gqvk
gS A ;g ckr lgh gS fd iz-Mh-&2 es a LVki iSesUV djus dh rkjh[k vafdr
ugha gSA bl izdj.k esa pSd LVsV cSad vkQ bankSj 'kk[kk 'kgMksy es a dk
fookfnr gSA ;g lgh gS fd lsUV~zy LVsV cSad vkQ bUnkSj 'kk[kk 'kgMksy
dk mlus dksbZ LVki iSesUV djus lEc/kh izek.k is'k ugha fd;k gSA og
'kgMksy eas gh jgrk gSA ;g lgh gS fd mlus iz'uk/khu cSad 'kgMksy eSa pSd
xqeus lEca/kh lwpuk fn;s tkus ;k pSd ds iSesUV dks LVki fd;s tkus lEca/kh
dksbZ vfHkys[k bl izdj.k es a ys[k ugha fd;k gSA izkFkhZ us Lor% dgk fd
C;kSgkjh dksfj;j ls 'kgMksy cSad ds fy;s cS a dks lwpuk Hksth A ;g dguk
xyr gS fd ifjokj dks pSd dh jkf'k u nsus ds fy;s mlus QthZ nLrkost
is'k fd;s gSA ;g dguk xyr gS fd mldk dksbZ pSd ugha xqekA ;g dguk
xyr gS fd Hkqxrku dh vnk;xh ls cpus d s fy;s og vkt >wBh o
eux<ar dFku dj jgk gSA ;g dguk xyr gS fd Fkkuk C;kSgkjh esa dksbZ
fjiksVZ ugha dhA^^"
26. Thus, from aforesaid deposition of respondent/accused, it appears the
cheque and other papers were in a hand bag and aforesaid hand bag was in the
hand of respondent/accused. It is highly unnatural and improbable that if, while
going from Shahdol to Beohari, the hand bag was lost or got slipped from the hand
of respondent/accused, then, he might have not noticed the same immediately.
Further, in examination-in-chief itself, on the one hand respondent/accused
Mahendra Singh has stated that when he reached Beohari, then, he noticed that the
papers were not in motorcycle. On the other hand, it is also stated therein that
when on the next day, he went to his room in Shahdol, then, his aforesaid
documents could not be found. It is not clear that if hand bag, containing cheque
and other documents, was lost while going from Shahdol to Beohari, then, how
and why the witness has stated in his examination-in-chief that when on the next
day, he went to his room in Shahdol, then, he did not found aforesaid bag
containing documents and reported the matter
27. Further, from testimony of respondent/accused Mahendra Singh, it is evident
that he had to make payment to one Ravendra Singh. Therefore, he had taken the
cheque and other documents to Shahdol and at relevant point of time, this
Ravendra Singh was riding motorcycle, on which respondent/accused was
travelling as pillion rider. Ravendra Singh has not been examined and no
explanation has been furnished for the same.
28. Respondent/accused Mahendra Singh has also stated in his examination-in-
chief that on 15.08.2012, he had reported to Beohari Thana with respect to fact that
he had lost cheque No. 216084 and other documents and second copy of the report
is Ex. D/1. With respect to aforesaid, respondent/accused has examined Sub
Inspector G.P. Tiwari (DW/2). But G.P. Tiwari (DW-2) has stated in his
examination-in-chief itself that on Ex. D/1, there is a seal of Incharge Thana
Beohari and there are signature also but he cannot state as to whose signature are
there on Ex. D/1. Witness has also stated in his examination-in-chief itself that
there is no entry of any such report in Rojnamcha of Thana, Beohari. Thus, there is
no entry with respect to Ex. D/1's report in police station, Beohari and no FIR has
been registered on the basis of Ex. D/1.
29. With respect to aforesaid, i.e. that Ex. P/1's signed blank cheque was lost, it
is also important as to whether concerned bank was immediately informed about
appellant/complainant Dheerendra Singh, respondent/accused Mahendra Singh as
well as Ex. D/2 clearly reveals that respondent/accused did not inform concerned
bank about the fact that Ex. P/1's cheque has been lost and did not ask the bank to
stop the payment with respect to Ex. P/1's cheque. No explanation for aforesaid
has been furnished on behalf of respondent/accused.
30. From suggestions given to appellant/complainant Dheerendra Singh in his
cross-examination as well as Upendra Singh and from testimony of
respondent/accused Mahendra Singh himself and otherwise also, signature of
respondent/accused Mahendra Singh on Ex. P/1 cheque is an admitted fact. If
respondent/accused did not make other entries in Ex. P/1's cheque and it were
made by someone else, then, respondent/accused should have got Ex. P/1's cheque
examined by some handwriting expert to prove the fact that on Ex. P/1's cheque,
only signature are of respondent/accused and other entries have been made by
someone else and they are not in the handwriting of respondent/accused. For
aforesaid also, no explanation has been furnished on behalf of the
respondent/accused.
31. Further, from deposition of appellant/complainant Dheerendra Singh as well
as Ex. P/4, P/5, P/6, it is evident that appellant/complainant had sent Ex. P/4's
notice to respondent/accused and receipt of the same by respondent/accused has
not been disputed at all by respondent/accused. This is also evident from cross-
examination of appellant/complainant Dheerendra Singh and Upendra Singh and
testimony of respondent Mahendra Singh himself.
32. Perusal of record of the case reveals that respondent/accused has not
explained anywhere that if Ex. P/1's cheque was lost and he did not fill it and
made entries therein and did not handover it to appellant/complainant, then, even
after receipt of Ex. P/4's notice, why did he immediately not send reply to Ex.
P/4's notice to appellant, stating therein that Ex. P/1's cheque was lost and he did
not make entries pertaining to amount and name of appellant/complainant etc.
33. Further, with respect to the fact that respondent/accused did not inform
concerned Bank to stop the payment of Ex.P/1's cheque stating that Ex.P/1's
cheque was lost and non-filing of any reply to Ex.P/4's notice, para-29 of
Rangappa Vs. Sri Mohan (2010) 11 SCC 441 is also relevant, which is as under:-
"29. Coming back to the facts in the present case, we are in
agreement with the High Court's view that the accused did not
raise a probable defence. As noted earlier, the defence of the
loss of a blank cheque was taken up belatedly and the accused
had mentioned a different date in the "stop payment"
instructions to his Bank. Furthermore, the instructions to "stop
payment" had not even mentioned that the cheque had been
lost. A perusal of the trial record also shows that the accused
appeared to be aware of the fact that the cheque was with the
complainant. Furthermore, the very fact that the accused had
failed to reply to the statutory notice under Section 138 of the
Act leads to the inference that there was merit in the
complainant's version. Apart from not raising a probable
defence, the appellant-accused was not able to contest the
existence of a legally enforceable debt or liability."
34. Similarly, with respect to non-filing of any reply to Ex.P/4's notice and also
that the cheque was lost, observations of Hon'ble Apex Court in para-17 and 18 of
Cr.A. No. 4171/2024 (Ashok Singh Vs. State of UP) decided on 02.04.2025, are
also relevant, which are as under:-
"17. In the present case, there is no denial apropos the
signature on the cheque by the respondent no.2 and, as
noted hereinbefore, the stand taken is that the said cheque
was lost. This is the reason given by the respondent no.2 to
have advised the bank to stop payment due to which the
cheque in question was not honoured/encashed. However,
the relevant dates beg to tell a different tale. The cheque in
question dated 17.03.2010 was presented within time but
returned un-encashed on 07.05.2010 with the endorsement
'payment stopped by drawer'. A Legal Notice was also
sent by the appellant on 18.05.2010 through Registered
Post, i.e., within the stipulated thirty days period, intimating
about the dishonour of the cheque. As no reply was
proffered by respondent no.2, thus, an inference, albeit
rebuttable, could arise that he had no sustainable/valid
defence to justify why the cheque in question was
dishonoured. Be that as it may, the respondent no.2 avers
that no reply was sent as he had not received any Legal
Notice.
18. Further, a defence raised by the respondent no.2 was that
he had intimated the police of the factum of the cheque
being lost. However, upon verification of the said claim, it
emerges that such intimation/information reached the police
only in the year 2011, though the intimation itself was dated
12.03.2010. Notably, the cheque was presented on
17.03.2010. This sequence strengthens the statutory
presumption in favour of the appellant, as it cannot be
believed that a cheque having been lost on/about
12.03.2010, the respondent no.2 would intimate the police
thereof only in the year 2011, moreso, when the amount
involved was a princely sum of Rs.22,00,000/- (Rupees
Twenty- Two Lakhs). It is noted that during cross-
examination, respondent no.2 admitted that such intimation
was sent to the police only in 2011 but never converted into
a formal FIR.
This further raises serious doubts with regard to the veracity
of the accused's claims/defences insofar as the story
projected of the cheque having been lost is concerned."
35. Thus, from discussion in the forgoing paras and having regard to nature and
extent of evidence available on record, this Court is of considered opinion that
from evidence on record, it is not established at all that at alleged date, time and
place or at any point of time, Ex. P/1's cheque was lost.
36. Further, so far as, in relation to rebuttal of presumption raised/drawn in
favour of appellant/complainant under Sections 118 and 139 of N.I. Act,
respondent/accused's defence, that appellant/complainant has failed to establish
source of amount of Rs. 21,50,000/- allegedly advanced to respondent/accused, is
concerned, with respect to aforesaid, it would be appropriate to refer and reproduce
relevant paras of appellant/complainant's evidence.
37. Appellant/complainant Dheerendra Singh has deposed in his examination-
in-chief as under:-
^^1- eSa vfHk;qDr dks tkurk gwa D;ksafd esjk mlls ikfjokfjd lEcU/k gS
og Bsdsnkjh dk dke djrs gS vksj esjk muls ysu&nsu dk dke gksuk jgrk
gSA vkjksih o esj s e/; fuifu;k esa nydks dksBkj lM+d fuekZ.k iz/kku ea=h
xzke lM+d ;kstuk iSdst ucaj 3880 ds vUrxZr lM+d fuifu;k ls nydks
dksBj rd fuekZ.k djkus gsrq vuqca/k gqvk FkkA mDr lM+d fuekZ.k ds esu
Bsdsnkj esllZ flag daLV~zsD'ku daiuh flxjkSyh ds uke ls Fkk ftldk dk;Z
djku s ds fy;s vfHk;qDr flag daLV~zsD'ku daiuh flaxjkSyh dh vkSj ls
iw.kZ :is.k vf/kd`r FkkA mldk vfHk;qDr ls isVh dakV~szDVj ds :i esa mDr
lMd fuekZ.k gsrq vuqac/k FkkA og mlh lMd fuekZ.k dk;Z gsrq vfHk;qDr dks
21]50]000@&:i;s uxn fn;k Fkka mDr lM+d fuekZ.k dkdk;Z pyrk jgkA
vfHk;qDr ds }kjk ;g dgk x;k fd mDr dk;Z iw.kZ gksus ij fglkc&fdrkc
dj iSlk ns fn;k tk;sxk fdUrq mlus dk;Ziw.kZ gksus ds ckn Hkh iSjku ugha
ik;kA mlus vfHk;qDr ls iSlk izkIr djus ds fy;s dkQh iz;kl fd;k ,oa
iapk;r fd;kA
izfrijh{k.k }kjk Jh ds-ch-lksuh vf/koDrk okLrs vfHk;qDr
04- ;g ckr lgh gS fd eSus U;k;ky; easa izLrqr ifjokn dks vPNh rjg
ls i<&le>dj is'k fd;k gSS ,oa ml ij gLrk{kj fd;k gSA eSus uksfVl dks
Hkh vPNh rjg ls i<dj viuk gLrk{kj fd;k FkkA ;g ckr lgh gS fd
eS ,xzhesaV dks Hkh vPNh rjg ls i< fy;k Fkk A iSdst ua- 3880 fuifu;k ls
nydks ds chp dh lk<s pkj fdyksehVj yackbZ dh lMd eq>s fuekZ.k gsrq nh
xbZ Fkh ftldh ykxr ,d dkjksM vBkjg yk[k FkhA iwjh lMd yxHkx 18
fdyksehVj yach FkhA ftlds Bsd dh ykxr pkj djksM pkSjlh yk[k Fkh
A ;g ckr lgh gS fd fd mDr fuekZ.k dk;Z ls lEcaf/kr izkDdyu fjiksVZ
eSus izdj.k esa izLrqr ugha fd;k gSA mDr fuekZ.k dk;Z iw.kZ djus dk le;
9 efgus FkkA eSus mDr fuekZ.k dk;Z vDVwcj 2008 ls izkjaHk fd;k Fkk vkSj
tuojh 2009 esa dk;Z lekIr gks x;k FkkA
05- ;g ckr lgh gS fd mDr fuekZ.k dk;Z flag daLV~zD'ku daiuh
flaxjkSyh dks Bsd s ij izkIr gqvk FkkA eq>s ugha ekyqe fd ml daiuh esa
vfHk;qDr ds uke ls lM+d fuekZ.k dk vf/kdkj i= fn;k Fkk ysfdu eSus
vfHk;qDr ds }kjk gh Bsdk izkIr fd;k FkkA ;g ckr lgh gS fd flag
daLV~zD'ku daiuh }kjk vfHk;qDr dks Bsdk nsus ij gh vfHk;qDr }kjk mls
Bsdk fn;kx ;k FkkA eq>s ugha ekyqe fd vDVwcj 2008 ls tuojh 2009 rd
ds dk;Z ds nkSjku vfHk;qDr us eq>s fdrus iSls dk Hkqxrku fd;k FkkA Lor%
dgk fd blds ckjs es a vfHk;qDr dks gh tkudkjh gksxh lk{kh us fQj dgk
fd yxHkx nl yk[k :i;s dk Hkqxrku vfHk;qDr us eq>s fd;k FkkA fQj
dgk fd eSus vfHk;qDr ls fdruk iSlk izkIr fd;k eq>s /;ku ugha gSA mldk
dkxt dgh j[kk gksxk mldk dksbZ dkxt eSus is'k ugha fd;k gSA
06- ;g ckr lgh gS fd eSus dke djus vkSj Hkqxrku izkIr djus ds lEcaU/k
esa dksbZ Hkh nLrkost izdj.k esas is'k ugha fd;k gSA esjs ikl etnwjks dks
Hkqxrku djus dk gkftjh jftLV~zj gSA fxV~Vh] feV~Vh] lfj;k vkSj lhesaV
vkfn dk dksbZ fglkc esjs ikl ugha gSA esj s ikl lhesaV] lfj;k] Mhty
[kjhnus dk dksbZ fglkc esjs ikl bl le; ugha gSA esjs ikl pkj MaQj gS
ftlesa M~zkbZoj j[ks gq;s gSA eS MaQj ls lEcaf/kr vk; O;; ds lEcU/k esa dksbZ
fglkc ugha j[krk gwa A esjs ikl fyf[kr esa ;g fglkc ugha gS fd fdldks
fdruk iSlk fn;k gwa vkSj fdlls fdruk iSlk izkIr fd;k gwaA ;g ckr lgh
gS fd esjs ikl egsUnz flag ds ysu&nsu ds lEcU/k es a dksbZ fglkc&fdrkc
ugha gSA eSA 21]50]000@&:i;s vfHk;qDr dks uxn fn;k FkkA eS mDr jkf'k
2]75]000@&:i;s ,Q-Mh- ds ek/;e ls fn;k FkkA eS mDr jkf'k nks&rhu
fd'rks esa fn;k FkkA eS mDr ,Q-Mh- 2008 esa VsaMj ds le; fn;k FkkA eSus
2008 ls 2009 ds chp tuojh ekg rd nks fd'r esa iSlk fn;k FkkA eS
vfHk;qDr dks jkf'k dc fn;k Fkk mldh fnu ] rkjh[k /;ku ugha gSA ;g
ckr lgh gS fd eSA mDr jkf'k lM+d fuekZ.k ds lEcU/k esa gh vfHk;qDr dks
fn;k FkkA
07- ;g ckr lgh gS fd eSjs uksfVl esa dgh ij ;g ys[k ugha gS fd eS
lM+d fuekZ.k dk;Z djus ds fy;s Bsdk vfHk;qDr ls fy;k FkkA ;g ckr lgh
gS fd eSjs uksfVl esa ;g ys[k ugha gS fd eSa 21]50]000@&:i;s vfHk;qDr
dks nks &rhu fd'r esa fn;k Fkk vkSj ,QMh Hkh fn;k FkkA ;g ckr lgh gS
fd esjs ifjokn i= es a ;g ys[k ugha gS fd eSA vfHk;qDr dks
21]50]000 :i;k nks&rhu fd'rksa esa fn;k FkkA mDr fuekZ.k dk;Z iSdst ua-
3880 dk dk;Z es a vdsys fy;k FkkA ;g ckr lgh gS fd vfHk;qDr ls tks
Bsdk mlus fy;k Fkk mleas dbZ yksx feydj dk;Z djrs FksA Lor% dgk fd
nwljs ls iSls ysus ij mdlk Hkh Bsds es a fgLlsnkj cukuk iMrk gSA mlh
fglkc ls dbZ yksx Bsds es a 'kkfey FksA misUnz flag Hkh mles 'kkfey FksA
vrqy flag ml Bsds esa 'kkfey ugha FksA fQj dgk fd vrqy flag vfHk;qDr
dslkFkdke djrs Fks] esjs lkFk dke ugha djrs FksA
08- ;g ckr lgh gS fd ml Bsds esa dke djus okys lHkh yksx ,d nwljs
ls ifjfpr Fks vkSj feytqydj dke djrs FksA ;g ckr lgh gS fd
vko';drk iMu s ij ,d&nwljs lkFk ls iSlk ,o a eVsfj;y dh m/kkjh
ysrs&nsrs jgrs FksA ;g ckr lgh gS fd tks iSlk ge m/kkjh ysrs Fks og iSlk
ckn esa ekaxus okys dks okil dj nsrs FksA ;g ckr lgh gS fd pSd fnuakd
07-10-09 dks fn;k x;k FkkS fQj dgk fd 07-10-12 dks fn;k x;k FkkA og
pSd vfHk;qDr us mls O;kSgkjh essa vius ?kj esa fn;k FkkA vfHk;qDr dk dksbZ ?
kj ugha cuk gSA og okMZ ua-9 es a ccyw JhokLro ds ?kjij fdjk, ls jgrs
FksA pSd nsrs le; ge nksuksa ds vykok misUnz flag Hkh FksA tks pSd fn;k
x;k Fkk og Hkjk gqvk Fkk A pSd mlh fnu Hkjk x;k Fkk vkSj vfHk;qDr us
gh Hkjk FkkA ;g ckr lgh gS fd pSd dh fy[kkoV vkSj gLrk{kj esa fHkUurk
gSA Lor% dgk fd gLrk{kj vaxzsth esa gS vkSj fy[kkoV fgUnh esa gS blfy;s
fHkUurk gSA
09- ;g dguk xyr gS fd mDr fuekZ.k dk;Z ls lEcaf/kr jkf'k dk
Hkqxrku 'kklu }kjk tuojh 2009 esa gks pqdk FkkA ;g ckr lgh gS fd
eq>s ;g ekyqe ugha gS fd mDr lMd fuekZ.k ls lEcaf/kr''kklu }kjk
vfHk;qDr dks dc jkf'k izkIr gqbZ gSA ;g dguk xyr gS fd vuqac/k i=
esa ;g ys[k fd;k x;k Fkk fd 6 eghus es a dk;Z iwjk u djus ij vuqca/k
lekIr gks tk;sxkA eq>s jksM l s lEcaf/kr LVhesaV izkIr ugha gqvk FkkA
blfy;s eq>s ugha ekyqe fd ml jksM esa D;k dke djrkFkkA ;g ckr lgh
gS fd vuqca/k esa ;g ys[k gS fd 6 efgus esa dke iwjk ugha gksus ij ,oa dke
NksMus ij ifjoknh dks dksbZ jkf'k ugha nh tk;sxhA ;g ckr lgh gS fd eSus
Makej dk dke ugha fd;k Fkk vkSj dke NksM fn;k Fkk D;ksafd dksbZ Hkqxrku
ugha gqvk FkkA ;g dguk xyr gS fd eSus va/kwjk dke NksM+ fn;k FkkA ;g
dguk xyr gS fd esjs }kjk le; ij iwjk dke u djus ds dkj.k vfHk;qDr
ij 12 yk[k :i;s dh iSukYVh foHkkx }kjk yxk;h xbZ FkhA eS ugha crk
ldrk fd vfHk;qDr us esjs }kjk NksMk gqvk dke o"kZ 2011 eas iwjk fd;k
A ;g ckr lgh gS fd esjk dk;Z MaQj cxSjg pykus vkSj Bsds ij lMd
cukus dk gSA ;g ckr lgh gS fd eSa vius dkjksckj dk fglkc j[krk gwa A
eS a Lo;a fglkc ugha djrk gw a A esjs dk;ZdrkZ fglkc&fdrkc j[krs gSA ;g
dguk xyr gS fd eSus iSdst uacj 3880 ls lEcaf/kr dksbZ dke ugha fd;k
blfy;s esj s ikl mldk dksbZ fglkc ugha gSA ;g ckr lgh gS fd eSus
iSdst uacj 3880 esa tks dke fd;k gS mlds ysu&nsu dk dksbZ fglkc esjs
ikl ugha gS blfy;s eSus izdj.k esa is'k ugha fd;k gSA
10- ;g ckr lgh gS fd o"kZ 2008 ls ysdj 2012 rd vfHk;qDr ls jfk'k
izkir djus ds laca/k esa fyf[kr :i ls dksbZ i= O;ogkj ugha fd;k gwa A
Lor% dgk fd ekSf[kd :i ls dbZ ckj dgk gSA eq>s bl le; /;ku ugha gS
fd eSu s vfHk;qDr dks nwljh fd'r esa fdruk iSlk fn;k FkkA eq>s ;g
Hkh /;ku ugha gS fd rhljh fd'r esa fdruk iSlk fn;k FkkA eSus dqN iSlk
cSad ls dzsfMV dkMZ ls yksu ysdj fn;k Fkk vkSj dqN b/kj m/kj ls m/kkj
ysdj fn;k FkkA eSus 6 yk[k :IK;s misUnz flag ls fy;k FkkA mDr jkf'k eS
2008&09 ds chp esa fy;k FkkA eSa cSad ls 17 yk[k :i;s dtZ fy;k Fkk A
eSus cSad ls dtZ 2008 esa fy;k FkkA eq>zs cSad ls yksu ysus dh fnu] rkjh[k
ekyqe ugha gSA eS cSad ls yh gqbZ jfk'k ls dqN Mhty dk iSlk fn;k Fkk
vkSj iSlk fdldks fn;k FkkA eq>s ;kn ugha gSA eq>s /;ku ugha gS fd esus tks
17 yk[k :;s dtZ fy;k Fkk mles ls fdruk iSlk vfHk;qDr dks fn;k FkkA
eS dkx ns[kdj crk ldrk gw a fd fdruk iSlk fdl rkjh[k dks fn;k
FkkA ;g ckr lgh gS fd eSus cSad ls yksu dk dksbZ dkxt izdj.k esa is'k
ugha fd;k gSA
11- ;g ckr lgh gS fd chl gtkj :I;s ls vf/kd dk ysu&nsu ,dkamV
is;h pSd ds ek/;e ls fd;k tkrk gS A ;g ckr lgh gS fd eq>s bl ckr
dh tkudkjh gS fd chl gtkj :i;s ls vf/kd dk ysunsu ,dkmaV is;h
psSd ls djuk pkfg;sA eSus vfHk;qDr dks O;ogkj esa iSlk fn;k Fkk] C;kt esa
ugha fn;k FkkA ;g dguk xyr gS fd vfHk;qDr us eq>ls dksbZ iSlk m/kkj
ugha fy;k FkkA ;g dguk xyr gS fd vfHk;qDr ujs eq> s dksbZ pSd ugha
fn;k A ;g dguk xyr gS fd eSus fdlh nwljs O;fDr ls vfHk;qDr dk pSd
izkIr dj mlesa euekuh jkf'k Hkjdj fy;k Fkk vkSj U;k;ky; esa dsl yxk
fn;k gSA ;g dguk xyr gS fd esjk vfHk;qDr ls dksbZ iSlk cdk;k ugha
FkkA ^^
38. Appellant/complainant witness Upendra Singh has deposed in his
examination-in-chief as under:-
^^1- eSa ifjoknh /khjsUnz flag o vfHk;qDr egsUnz flag dks tkurk&igpkurk
gwa ?kVuk o"kZ 2009 dh gSA egsUnz flag iz/kku ea=h xzke lM+d ;kstuk ds
rgr fuekZ.k gsrq Bsdk fy;s FksA fuifu;k ls nydks dksBj rd lM+d cukus
ds fy;s Bsdk fy;k x;k FkkA ftldk iSdst uacj 3880 FkkA nksuksa ds e/;
iSlks ds ysu nsu dk fookn gks x;k FkkA esjs le{k vfHk;qDr egsUnz flag us
21]50]000@&:i;s dk pSd ifjoknh /khjsUnz flag dks fn;kFkkA lM+d fuekZ.k
ds lEcU/k esa pSd fn;k x;k FkkA eS /khjsUnz flag ds lkFk lMd fuekZ.k dk
dk;Z dj jgk FkkA /khjsUnz flag us eq>ls N% yk[k :i;s dke gsrq m/kkj fy;s
FksA mUgksaus eq>ls dgk Fkk fd egsUnz flag dks 21]50]000@& :i;s nsuk gS
vkSj dqN :i;s de iM+ jgs gSA blfy;s eq>s dqN iSlk m/kkj ns nksA
izfrijh{k.k }kjk Jh ds-ch-lksuh vf/koDrk okLrs vkjksih
02- ;g ckr lgh gS fd esjs lkeus egsUnz flag vkSj /khjsUnz flag ds chp
iSlksa dk ysu&nsu ugha gqvk FkkA eSus /khjsUnz flag dks 15 vDVwcj 2008 dks
N% yk[k :i;k fn;k FkkA pSd esjs lkeus fn;k x;k FkkA fnuakd 07-10-12
dks esjs le{k egsUnz flag us /khjsUnz flag dks 21]50]000@& :i;s dk psSd
fn;k FkkA mDr pSd ccyw JhokLro ds edku es fn;k Fkk tgka og fdjk,
ls jgrs FksA ml le; eSA /khsjsUnz flag vkSj egsUnz flag ekStwn Fks vkSj dksbZ
O;fDr ugha FkkA;g dguk lgh gS fd egsUnz flag us /khjsUnz flag dks pSd
fdl miy{; esa fn;k Fkk eS ugha crk ldrk A ;g ckr lgh gS fd egsUnz
flag }kjk fn;s x;s pSd dks eSA vius gkFk ls ysdj ugha ns[kk Fkk A ;g
ckr lgh gS fd eSa ;g ugha crk ldrk fd mDr pSd fgUnh esa fy[kk x;k
Fkk vFkok vaxzsth esa A esus mDr pSd Hkjk gqvk ns[kk FkkA ;g ckr lgh gS
fd mDr pSd esjs lkeus ugha Hkjk x;k FkkA eS ;g ugha crk ldrk fd
mDr pSd fdlus Hkjk FkkA
03- ;g dguk xyr gS fd eS ;g ugha crk ldrk fd pSd fdl cSad ds
fy;s Hkjk x;k FkkA Lor% dgk fd LVsV cSad vkQ bankSj 'kk[kk 'kgMksy ds
fy;s pSd fn;k x;k FkkA eS a iSdst dzaekd 3880 esa dke ugha fy;k Fkk
cfYd eS /khjsUnz flag ds lkFk dke dj jgk FkkA lMd fuekZ.k dk dk;Z 4-4
fdyksehVj dk Fkk ftldh ykxr 1djksM+ 18 yk[k FkhA ml iSdst esa
yxHkx nl yksx dke dj jgs FksA vyx & vyx yksxksa dks vyx&vyx
dke fn;k x;k FkkA lM+d fuekZ.k dk dk;Z vDVwcj 2008 eas izkjEHk gqvk Fkk
vkSj tuojh 2009 es a lekIr gks x;k FkkA mDr jksM ls ,d iSlk Hkh eq>s
izkIr ugha gqvk FkkA eSa Lo;a ykxr ugha yxk;k FkkA
04- eq> s ugha ekyqe fd /khjsUnz flag us fdruh ykxr yxk;k FkkA /khjsUnz
flag us eq>s lM+d ds lEcU/k esa ;g crk;s Fks fd fdruk iSlk yxk gS vkSj
fdruk dke gqvk gSA /khjsUnz flag eq>s crk jgs Fks fd mDr fuekZ.k dk;Z
esa ipklksa yk[k yx x;k gSA eSA ;g ugha crk ldrk fd egsUnz flag mDr
fuekZ.k dk;Z ds lEcU/k esa /khjsUnz flag dks fdruk iSlk fn;s FksA mDr lMd
fuekZ./k dk;Z esa esjk /khjsUnz flag ls dksbZ ysuk nsuk ugha FkkA eS fookfnr
pSd dk uEcj ugha crk ldrk A ;g ckr lgh gS fd egsUnz flag vkSj
/khjsUnz flag ds chp dc&dc iSls dk ysu&nsu gqvk eS ugha crk ldrk A
Hkqxrku fd;k FkkA ;g ckr lgh gS fd esjk vkSj /khjsUnz flag dk iSls dk
ysu&nsu ges'k pyrk jgrk gSA
05- eSus /khjsUnz flg dks 6]00]000@&:i;k ?kj ls ykdj fn;k FkkA eSus
dqN iSlk cSad ls fudkyk FkkA dqN iSlk LVsV cSad ls vkSj dqN iSlk lsaV~zy
cSad ls fudkyk FkkA eq>s ;g ekyqe gS fd 49]000@& :i;s rd uxn
fn;k tk ldrk gS] mlls vf/kd dh jkf'k ,dkmaV is;h pSd ls nh tkrh
gSA ;g dguk xyr gS fd esjs lkeus egsUnz flag us /khjsUnz flag dks dksbZ
pSd ugha fn;k FkkA ;g dguk xyr gS fd blh dkj.k ls eS a pSd ds
lEcU/k esa lgh tkudkjh ugha crk ldrk gwa A ;g dguk xyr gS fd eSa
>wBh xokgh ns jgk gwaA^^
39. Hence, if aforesaid testimonies of appellant/complainant Dheerendra Singh
and his witness Upendra Singh are taken into consideration and are examined and
assessed cumulatively, then, having regard to business relationship and
transactions between appellant/complainant and respondent/accused as well as
appellant/complainant's business, it cannot be said that appellant/complainant was
not having financial capacity to advance an amount of Rs. 21,50,000/- to
respondent/accused. With respect to aforesaid, it is also important to note that
respondent/accused Mahendra Singh in his deposition has nowhere deposed that
appellant/complainant was not having financial capacity to advance an amount of
Rs. 21,50,000/- to respondent/accused. He is completely silent on above issue in
his deposition.
40. Further, it is correct that appellant/complainant has not mentioned anything
about source of amount of Rs. 21,50,000/- advanced to respondent/accused, i.e. no
details pertaining thereto have been mentioned in complaint. With respect to
aforesaid, it is noticeable that after appellant/complainant sent Ex. P/4's notice to
respondent/accused and after respondent received the same, respondent/accused
did not send any reply to aforesaid notice and no explanation for the same has been
of absence of any reply to Ex. P/4's notice, appellant/complainant was not required
or mandated by any provisions of law to mention details of source of amount in the
complaint itself.
41. Issue pertaining to "source of amount" has also been dealt by Hon'ble Apex
Court in Rohitbhai Jivanlal Patel (supra), Ashok Singh (supra) and P. Rasiya
Vs. Abdul Nazer and another (Cr.A. NO. 1233-1235 of 2022) decided on
12.08.2022. With respect to aforesaid, Hon'ble Apex Court in Rohitbhai Jivanlal
Patel (supra) has observed and has held as under:-
"5.1.1. There was no documentary evidence to show the source
of income for advancing the loan to the accused;
8. The learned counsel has referred to the reasons assigned by
the Trial Court to acquit the accused-appellant and has submitted
that contradictory statements have been made by the complainant
and the witness; that no clear and cogent evidence has been
brought on record to prove the source of funds for advancing any
loan by the complainant; that admittedly, the complainant did not
have the amount of Rs. 22,50,000/- and the same was arranged
through his friends and relatives but he made vacillating
statement in that regard and none of such relatives or friends was
examined as witness; that the witness for the complainant had
more knowledge about the transaction than the complainant; that
the complainant appeared to have rather no knowledge regarding
the payments, funds and the period of transaction; and that there
was no explanation as to how the complainant was claiming Rs.
22,50,000/- as the debt, when the sum total of the instalments
(cheques) comes to Rs. 21,00,000/- only. The learned counsel
would also argue that complainant has heavily relied on the
stamp paper dated 21.03.2007 but then, admittedly, the
complainant had not signed on the said stamp paper; and this
document, neither notarised nor registered anywhere and only
bearing the signatures of the appellant and of the said Shri
Jagdishbhai, is not of any evidentiary value for the case of the
complainant.
18. In the case at hand, even after purportedly drawing the
presumption under Section 139 of the NI Act, the trial court
proceeded to question the want of evidence on the part of the
complainant as regards the source of funds for advancing loan
to the accused and want of examination of relevant witnesses
who allegedly extended him money for advancing it to the
accused. This approach of the trial court had been at variance
with the principles of presumption in law. After such
presumption, the onus shifted to the accused and unless the
accused had discharged the onus by bringing on record such
facts and circumstances as to show the preponderance of
probabilities tilting in his favour, any doubt on the
complainant's case could not have been raised for want of
evidence regarding the source of funds for advancing loan to
the appellant-accused. The aspect relevant for consideration
had been as to whether the appellant-accused has brought on
record such facts/material/circumstances which could be of a
reasonably probable defence.
20. Hereinabove, we have examined in detail the findings of the
trial court and those of the High Court and have no hesitation in
concluding that the present one was clearly a case where the
decision of the trial court suffered from perversity and
fundamental error of approach; and the High Court was
justified in reversing the judgment of the trial court. The
observations of the trial court that there was no documentary
evidence to show the source of funds with the respondent to
advance the loan, or that the respondent did not record the
transaction in the form of receipt of even kachcha notes, or that
there were inconsistencies in the statement of the complainant
and his witness, or that the witness of the complaint was more
in the know of facts, etc. would have been relevant if the matter
was to be examined with reference to the onus on the complaint
to prove his case beyond reasonable doubt. These
considerations and observations do not stand in conformity
with the presumption existing in favour of the complainant by
virtue of Sections 118 and 139 of the NI Act. Needless to
reiterate that the result of such presumption is that existence of
a legally enforceable debt is to be presumed in favour of the
complainant. When such a presumption is drawn, the factors
relating to the want of documentary evidence in the form of
receipts or accounts or want of evidence as regards source of
funds were not of relevant consideration while examining if the
accused has been able to rebut the presumption or not. The
other observations as regards any variance in the statement of
complainant and witness; or want of knowledge about dates
and other particulars of the cheques; or washing away of the
earlier cheques in the rains though the office of the complainant
being on the 8th floor had also been irrelevant factors for
consideration of a probable defence of the appellant. Similarly,
the factor that the complainant alleged the loan amount to be Rs
22,50,000 and seven cheques being of Rs 3,00,000 each leading
to a deficit of Rs 1,50,000, is not even worth consideration for
the purpose of the determination of real questions involved in
the matter. May be, if the total amount of cheques exceeded the
alleged amount of loan, a slender doubt might have arisen, but,
in the present matter, the total amount of 7 cheques is lesser
than the amount of loan. Significantly, the specific amount of
loan (to the tune of Rs 22,50,000) was distinctly stated by the
appellant-accused in the aforesaid acknowledgment dated 21-3-
2017."
42. Hon'ble Apex court in Ashok Singh (supra) Cr.A. No. 4171/2024 (Ashok
Singh Vs. State of UP) decided on 02.04.2025, in paras 21 and 22 has held as
under:-
"21. One of the grounds, which weighed heavily with the High Court
to acquit the respondent no.2 was that the appellant was unable to
prove the source of Rs.22,00,000/- (Rupees Twenty-Two Lakhs) given
to the respondent no.2 as loan. Admittedly, the signature on the cheque
is of the respondent no.2 himself. The decision in Rohitbhai Jivanlal
Patel v. State of Gujarat, (2019) 18 SCC 106 can be profitably
referred to:
'18. In the case at hand, even after purportedly drawing
the presumption under Section 139 of the NI Act, the trial
court proceeded to question the want of evidence on the
part of the complainant as regards the source of funds for
advancing loan to the accused and want of examination
of relevant witnesses who allegedly extended him money
for advancing it to the accused. This approach of the trial
court had been at variance with the principles of
presumption in law. After such presumption, the onus
shifted to the accused and unless the accused had
discharged the onus by bringing on record such facts and
circumstances as to show the preponderance of
probabilities tilting in his favour, any doubt on the
complainant's case could not have been raised for want of
evidence regarding the source of funds for advancing
loan to the appellant- accused. The aspect relevant for
consideration had been as to whether the appellant-
accused has brought on record such facts/
material/circumstances which could be of a reasonably
probable defence.
20. Hereinabove, we have examined in detail the findings of
the trial court and those of the High Court and have no
hesitation in concluding that the present one was clearly a
case where the decision of the trial court suffered from
perversity and fundamental error of approach; and the
High Court was justified in reversing the judgment of the
trial court. The observations of the trial court that there
was no documentary evidence to show the source of funds
with the respondent to advance the loan, or that the
respondent did not record the transaction in the form of
receipt of even kachcha notes, or that there were
inconsistencies in the statement of the complainant and
his witness, or that the witness of the complaint was more
in the know of facts, etc. would have been relevant if the
matter was to be examined with reference to the onus on
the complaint to prove his case beyond reasonable doubt.
These considerations and observations do not stand in
conformity with the presumption existing in favour of the
complainant by virtue of Sections 118 and 139 of the NI
Act. Needless to reiterate that the result of such
presumption is that existence of a legally enforceable debt
is to be presumed in favour of the complainant. When
such a presumption is drawn, the factors relating to the
want of documentary evidence in the form of receipts or
accounts or want of evidence as regards source of funds
were not of relevant consideration while examining if the
accused has been able to rebut the presumption or
not..........."
(emphasis supplied)
22. The High Court while allowing the criminal revision has primarily
proceeded on the presumption that it was obligatory on the part of the
complainant to establish his case on the basis of evidence by giving
the details of the bank account as well as the date and time of the
withdrawal of the said amount which was given to the accused and
also the date and time of the payment made to the accused, including
the date and time of receiving of the cheque, which has not been done
in the present case. Pausing here, such presumption on the
complainant, by the High Court, appears to be erroneous. The onus is
not on the complainant at the threshold to prove his capacity/financial
wherewithal to make the payment in discharge of which the cheque is
alleged to have been issued in his favour. Only if an objection is raised
that the complainant was not in a financial position to pay the amount
so claimed by him to have been given as a loan to the accused, only
then the complainant would have to bring before the Court cogent
material to indicate that he had the financial capacity and had
actually advanced the amount in question by way of loan. In the case
at hand, the appellant had categorically stated in his deposition and
reiterated in the cross-examination that he had withdrawn the amount
from the bank in Faizabad (Typed Copy of his deposition in the paper
book wrongly mentions this as 'Firozabad'). The Court ought not to
have summarily rejected such stand, more so when respondent no.2
did not make any serious attempt to dispel/negate such
stand/statement of the appellant. Thus, on the one hand, the statement
made before the Court, both in examination-in-chief and cross-
examination, by the appellant with regard to withdrawing the money
from the bank for giving it to the accused has been disbelieved
whereas the argument on behalf of the accused that he had not
received any payment of any loan amount has been accepted. In our
decision in M/s S. S. Production v. Tr. Pavithran Prasanth, 2024
INSC 1059, we opined:
'8. From the order impugned, it is clear that though the
contention of the petitioners was that the said amounts
were given for producing a film and were not by way of
return of any loan taken, which may have been a probable
defence for the petitioners in the case, but rightly, the High
Court has taken the view that evidence had to be adduced
on this point which has not been done by the petitioners.
Pausing here, the Court would only comment that the
reasoning of the High Court as well as the First Appellate
Court and Trial Court on this issue is sound. Just by taking
a counter-stand to raise a probable defence would not
shift the onus on the complainant in such a case for the
plea of defence has to be buttressed by evidence, either
oral or documentary, which in the present cases, has not
been done. Moreover, even if it is presumed that the
complainant had not proved the source of the money
given to the petitioners by way of loan by producing
statement of accounts and/or Income Tax Returns, the
same ipso facto, would not negate such claim for the
reason that the cheques having being issued and signed
by the petitioners has not been denied, and no evidence
has been led to show that the respondent lacked capacity
to provide the amount(s) in question. In this regard, we
may make profitable reference to the decision in Tedhi
Singh v Narayan Dass Mahant, (2022) 6 SCC 735:
'10. The trial court and the first appellate court have
noted that in the case under Section 138 of the NI
Act the complainant need not show in the first
instance that he had the capacity. The proceedings
under Section 138 of the NI Act is not a civil suit. At
the time, when the complainant gives his evidence,
unless a case is set up in the reply notice to the
statutory notice sent, that the complainant did not
have the wherewithal, it cannot be expected of the
complainant to initially lead evidence to show that
he had the financial capacity. To that extent, the
courts in our view were right in holding on those
lines. However, the accused has the right to
demonstrate that the complainant in a particular
case did not have the capacity and therefore, the
case of the accused is acceptable which he can do by
producing independent materials, namely, by
examining his witnesses and producing documents.
It is also open to him to establish the very same
aspect by pointing to the materials produced by the
complainant himself. He can further, more
importantly, achieve this result through the
crossexamination of the witnesses of the
complainant. Ultimately, it becomes the duty of the
courts to consider carefully and appreciate the
totality of the evidence and then come to a
conclusion whether in the given case, the accused
has shown that the case of the complainant is in
peril for the reason that the accused has established
a probable defence.'
(emphasis supplied)'
(underlining in original; emphasis supplied by us in bold)
23. In the present case, on an overall circumspection of
the entire facts and circumstances of the case, we find
that the appellant succeeded in establishing his case and
the Orders passed by the Trial Court and the Appellate
Court did not warrant any interference. The High Court
erred in overturning the concurrent findings of guilt and
consequential conviction by the Trial Court and the
Appellate Court.
24. Accordingly, for reasons aforesaid, the appeal is
allowed. The Impugned Order is set aside.
43. Hon'ble Apex court in P. Rasiya (supra), in para 7, 8 and 9 has held as
under:-
"7. Feeling aggrieved and dissatisfied with the judgment and
orders passed by the Appellate Court affirming the conviction of
the accused under Section 138 of the N.I. Act, the accused
preferred three different Revision Applications before the High
Court. By the impugned common judgment and order, the High
Court has reversed the concurrent findings recorded by both the
courts below and has acquitted the accused on the ground that, in
the complaint, the Complainant has not specifically stated the
nature of transactions and the source of fund. However, the High
Court has failed to note the presumption under Section 139 of
the N.I. Act. As per Section 139 of the N.I. Act, 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 discharge, in whole or in part, of any debt or other
liability. Therefore, once the initial burden is discharged by the
Complainant that the cheque was issued by the accused and the
signature and the issuance of the cheque is not disputed by the
accused, in that case, the onus will shift upon the accused to
prove the contrary that the cheque was not for any debt or other
liability. The presumption under Section 139 of the N.I. Act is a
statutory presumption and thereafter, once it is presumed that the
cheque is issued in whole or in part of any debt or other liability
which is in favour of the Complainant/holder of the cheque, in
that case, it is for the accused to prove the contrary. The
aforesaid has not been dealt with and considered by the High
Court. The High Court has also failed to appreciate that the High
Court was exercising the revisional jurisdiction and there were
concurrent findings of fact recorded by the courts below.
8. In view of the above and for the reasons stated above, the
impugned common judgment and order passed by the High
Court is not sustainable and the same deserves to be quashed and
set aside.
9. Under the circumstances, the impugned judgment and order
passed by the High Court acquitting the accused for the offence
punishable under Section 138 of the N.I. Act is hereby quashed
and set aside and the order passed by the learned trial Court
convicting the accused for the offence punishable under Section
138 of the N.I. Act confirmed/modified by the learned Sessions
Court is hereby restored. Now, the accused be dealt with as per
the order passed by the first Appellate Court/Sessions Court."
44. Having regard to factual matrix of the case and evidence available on record
and as discussed in preceding paras, in this Court's opinion, principles laid
down /observations made in Rohitbhai Jivanlal Patel (supra), Ashok Singh
(supra) and P. Rasiya (supra) squarely apply to the facts of the instant case. It
is also so because factual matrix and evidence of instant case is also almost
identical to that of aforesaid pronouncements.
45. Hence, in this Court's opinion, it is not established in the instant case that
appellant/complainant was not having financial capacity to advance an amount of
Rs.21,50,000/- to respondent/accused.
46. So far as principles of law laid down by Hon'ble Apex Court in Dattatraya
(supra) are concerned, on account of difference in factual matrix and evidence of
the case, principles laid down/observations made, especially in paras 28, 30 and 32
do not apply in the instant case and do not help respondent/accused in the instant
case in any manner whatsoever. In this Court's opinion, respondent/accused has
failed to rebut the presumption drawn in favour of appellant/complaiant under
Sections 118 and 139 of N.I. Act.
47. Thus, from discussion in the forgoing paras, following facts clearly stands
established:-
(i) That, it is an admitted fact that Ex. P/1's cheque has signature
of respondent/accused;
(ii) That, respondent/accused has failed to establish that Ex. P/1's
cheque was lost;
(iii) That, Ex. P/4's notice was received by respondent/accused but
respondent/accused did not send any reply to aforesaid notice;
(iv) That, hence, there is a presumption in favour of
appellant/complainant that there was a legally enforceable debt or
liability and for discharge of the same, respondent/accused has
issued Ex. P/1's cheque and gave it to appellant/complainant;
(v) That, from evidence on record, aforesaid presumption in
favour of appellant/complainant does not stand rebutted.
48. Resultantly, in view of discussion in the forgoing paras and having regard to
evidence available on record, in this Court's considered opinion, ingredients
constituting offence under Section 138 of N.I.Act stands clearly established in the
instant case. Therefore, learned trial Court has wrongly acquitted
by the appellant/complainant is allowed and impugned judgment passed by the
trial Court is set aside and respondent/accused is convicted under Section 138 of
N.I. Act.
49. So far as sentence under Section 138 of N.I. Act is concerned, present case
pertains to dishonour of Ex. P/1's cheque [dated 07.10.2012] of an amount of Rs.
21,50,000/-. Having regard to overall facts of the case, respondent/accused is
sentenced under Section 138 of N.I. Act with fine to the extent of double of the
amount of Ex.P/1's cheque, i.e. Rs.43,00,000/- (Rupees Forty Three Lacs) with
default stipulation of imprisonment of R.I. of six months. Out of the aforesaid fine
amount, a sum of Rs.40,00,000/- (Rupees Forty Lacs) be given to
appellant/complainant as compensation.
50. Copy of judgment, alongwith record of the case, be sent forthwith to trial Court
for information and necessary compliance.
51. Appeal filed by the appellant/complainant is allowed and disposed off
accordingly.
[
(ACHAL KUMAR PALIWAL)
JUDGE
L.R.
