Case Title : Rajesh Jain v. Ajay Singh

Reiterating the principles relating to the presumption under Section 139 of the Negotiable Instruments Act 1881, the Supreme Court reversed the acquittal of an accused in a case of cheque dishonor.

A bench comprising Justice Aravind Kumar and SVN Bhatti Observed that there was a “fundamental flaw “ approach taken by both the Trial Court and High Court .

Summarizing the law relating to presumption under Section  139 NI Act  and the mode of its rebuttal , the Court stated-

“Once the presumption under Section 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 setup by , the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused . The nature of inquiry then to be see whether the accused  has discharge his onus of rebutting the presumption.  If he fails to do so , the court straightaway convict him , subject to satisfaction of the other ingredients of Sec 138 NI Act . If the court finds that the evidential burden placed on the accused has been discharge, the complainant would be expected to prove the said fact independently, without taking the aid of the presumption . The court would then take an overall  view based on the evidence on record and decide accordingly .”

When the Courts have concluded that the signature in the cheque has been admitted and its execution has been proved , the court should inquire into either of the two questions:

  1. Has the accused led any defense evidence to prove and conclusively established that there existed no debt/ liability at the time of issuance of cheque ?
  2. In the absence of rebuttal evidence being led the inquiry would entail : Has the accused proved the non existence of debt/liability by preponderance of probability by referring to the ‘particular circumstances of the case .

Referring to a catena of precedents , the Court  reiterated that as soon as the complainant proves the execution of the cheque, the burden of proof shifts to the accused by virtue of Sec 139 NI Act .

“Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.”

The standard of proof to discharge this burden of proof on the accused is not heavy and can be established through the preponderance of probability. The accused can either adduce direct evidence or circumstantial evidence.

Once both the parties adduced the evidence , Section 139 presumption does not come to the rescue of the complainant .

Further, the Court explained : “Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit evidence ,the burden shifts to the complainant and the ‘presumption ‘ disappear and does not haunt the accused any longer .The onus having now shifted to the complainant , he will be obliged to prove the existence of the debt/ liability as a matter of fact and his failure to prove would result into dismissal of the complaint case . Thereafter, the presumption under Section 139 would not again come to rescue to the complainant’s case. Once both parties adduced evidence , the court have to consider the same and burden of proof looses all its importance .

Coming to facts of the case , the court said that the framing of the issue by the trial court were erroneous has the presumption of Section has not applied .  The court further held that the accused has not discharge the burden of proof. Merely by raising some suggestion in the cross examination , the burden of proof can’t be discharge. A probable defense has to set up .

The court said “ The fundamental error in the approach lies in the fact that High Court has question 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 has discharge the evidential burden by proving that there exist no debt/liability at the time of issuance of cheque.

Written by Adv Rohit Yadav D/8639/2019

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