Punjab-Haryana High Court
Paramjit Kaur vs Kuldeep Singh on 11 September, 2023
Neutral Citation No:=2023:PHHC:118373
CRM-A-2536 of 2019 2023:PHHC:118373 [1]
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-A-2536 of 2019
Date of decision: 11th September, 2023
Paramjit Kaur
Applicant
Versus
Kuldeep Singh
Respondent
CORAM: HON'BLE MR. JUSTICE AVNEESH JHINGAN
Present: Mr. Rajat Dogra, Advocate for the applicant.
AVNEESH JHINGAN, J (Oral):
1. This is an application under Section 378(4) Cr.P.C. seeking
leave to appeal against acquittal in Criminal Case No. 58 dated 10.4.2018
under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the
Act').
2. The brief facts are that Paramjit Kaur (applicant) filed a
complaint under Section 138 of the Act on dishonour of cheque bearing
No. 065987 dated 9.3.2018 amounting to Rs.70,000/- drawn on State Bank
of Patiala (Now SBI) Branch Jaitu. The case set up by the applicant was
that the respondent had borrowed loan of Rs.70,000/- and to clear the debt,
the cheque in question was issued.
3. The complainant in order to prove her case, tendered her
affidavit, original cheque, memo of dishonour, legal notice, postal receipt
and certified copy of account statement.
4. The respondent took a defence that the cheque handed over to
Jarnail Singh as security was mis-used. To substantiate the defence, DW1-
Navdeep Singh deposed that the respondent had taken a shop on rent from
Jarnail Singh, he received a blank cheque as security. Son of the
complainant was a regular visitor of Jarnail Singh. The respondent had
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lodged criminal proceeding against Jarnail Singh which was pending in the
court. The cheque in question was handed over to the son of the
complainant by Jarnail Singh and it was mis-used.
5. The court concluded that the respondent was successful in
rebutting presumptions under Sections 118 and 139 of the Act. On failure
of the complainant to prove existence of legally enforceable debt on the
date of presentation of cheque, the respondent was acquitted, hence the
present application.
6. Learned counsel for the applicant submits that the court erred
in acquitting the respondent. He further submits that DW1-Navdeep Singh
in cross-examination admitted that there was no written rent agreement
between Jarnail Singh and the respondent. The contention is that signatures
of the respondent on the cheque are not disputed.
7. The law is well-settled that the presumptions under Sections
118 and 139 of the Act is in favour of the holder of the cheque are
rebuttable. There is no dispute on the proposition that presumption is
rebuttable not to the extent to prove beyond reasonable doubt but has to be
on principle of probabilities and preponderance. After rebuttable of the
presumption, the onus shifts on the complainant.
8. The Supreme Court in Vijay v. Laxman and another, 2013
(2) JT 562 held as under:
"We are not unmindful of the fact that there is a presumption
that the issue of a cheque is for consideration. Sections 138
and 139 of the Negotiable Instruments Act make that
abundantly clear. That presumption is, however, rebuttable in
nature. What is most important is that the standard of proof
required for rebutting any such presumption is not as high as
that required of the prosecution. So long as the accused can
make his version reasonably probable, the burden of
rebutting the presumption would stand discharged. Whether
or not it is so in a given case depends upon the facts and
circumstances of that case. It is trite that the courts can take
into consideration the circumstances appearing in the
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evidence to determine whether the presumption should be
held to be sufficiently rebutted. The legal position regarding
the standard of proof required for rebutting a presumption is
fairly well settled by a long line of decisions of this Court".
9. In the present case, the defence taken by the respondent of
mis-use of cheque was substantiated by DW1-Navdeep Singh. On shifting
of onus the complainant miserably failed to produce evidence with regard
to advancing of loan and existence of legally enforceable debt on the date
of presentation of the cheque. The case set up was that friendly loan was
advanced to respondent by her but the complainant faultered in cross-
examination and admitted that the respondent was not known to her and
they had no previous dealing.
10. No case is made out for interference in the impugned judgment,
as no legal or factual error much less perversity has been pointed out. The
view taken by the court below is plausible.
11. The application is dismissed.
[AVNEESH JHINGAN]
JUDGE
11th September, 2023
mk
1. Whether speaking/ reasoned : Yes / No
2. Whether reportable : Yes / No
Neutral Citation No:=2023:PHHC:118373
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