Issue for consideration
Since the execution of the cheque is, admittedly, not under dispute, the limited question to be considered, is (i) whether the accused can be said to have discharged his ‘evidential burden’, for the courts below to have concluded that the presumption of law supplied by s.139 of the Negotiable Instruments Act, 1881 had been rebutted. Negotiable Instruments Act, 1881 – s.139 – Respondent-accused tried for offence u/s. 138 of NI Act – Trial Court acquitted respondent – Order of acquittal upheld by the High Court – Propriety: Held: There is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record – Once the presumption u/s. 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability – The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused – The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption – In the instant case, when the courts concluded that the signature had been admitted, the Court ought to have inquired into either of the two questions (depending on the method in which accused has chosen to rebut the presumption): Has the accused led any defense evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque – In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the ‘particular circumstances of the case’ – There was perversity in the approach of the trial Court as it framed the question ‘whether a legally valid and enforceable debt existed qua the complainant and the cheque in question (Ex. CWI/A) was issued in discharge of said liability/debt’ – When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right – The onus instead of being fixed on the accused has been fixed on the complainant – The High Court has also questioned the want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque – On consideration of the record, the case set up by the accused was riddled with contradictions – Answer of the question (i) is in negative – Consequently, the complaint filed u/s. 138 of the NI Act is allowed and respondent-accused convicted. [Paras 55,56,57,62,63] Evidence Act, 1872 – Negotiable Instruments Act, 1881 – Burden of Proof and Presumptions: Conceptual Underpinnings – discussed and elaborated.
Headnote
Negotiable Instruments Act, 1881 – s.139 – Effect of Presumption and Shifting of Onus of Proof – discussed.
LIST OF CITATIONS AND OTHER REFERENCES
Mst. Dalbir Kaur and Ors. v. State of Punjab (1976) 4 SCC 158 : [1977] 1 SCR 280; Gimpex Private Limited v. Manoj Goel (2022) 11 SCC 705; K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 : [1999]
3 Suppl. SCR 271; Kundanlal v. Custodian Evacuee Property AIR 1961 SC 1316; G.Vasu v. Syed Yaseen AIR 1987 AP 139; Bharat Barrel v. Amin Chand (1999) 3 SCC 35 : [1999] 1 SCR 704; Kumar Exports v. Sharma Exports (2009) 2 SCC 513 : [2008] 17 SCR 572; Bir Singh v. Mukesh Kumar (2019)
4 SCC 197 : [2019] 2 SCR 24; Rangappa vs. Mohan AIR 2010 SC 1898 : [2010] 6 SCR 507; Basalingappa v. Mudibasappa AIR 2019 SC 1983 : [2019] 6 SCR 555 – referred to.
Rules of Evidence – The Hidden Origin of Modern Law – John Henry Wigmore – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
As published in the Supreme Court Reports, Supreme Court of India.
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