N NARSINGARAO Vs. SRINIVASA CHARY

JUDGEMENT

(1.) Unsuccessful complainant in the case relating to offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act) is the appellant herein. He filed C.C.No.289 of 2003 on the file of Special Judicial Magistrate of the First Class for Excise Cases, Mahaboobnagar against the accused alleging offence under Section 138 of the Act on the ground that the accused borrowed hand loan of Rs.70,000/- on 03.05.2000 and that subsequently the accused gave Ex.P-1 cheque dated 04.09.2002 for Rs.1,09,200/- to the complainant towards settlement of the said debt and that the said cheque when presented for encashment, was dishonoured as per Ex. P-2 dishonour memo. After issuing Ex.P-3 statutory notice, the complainant filed the case in the lower court. During trial in the lower court, the complainant examined himself as P.W.1 and marked as Exs.P-1 to P-7 on his behalf. No evidence was let in by the accused. The lower court after considering contentions of both the parties, found the accused not guilty of the offence under Section 138 of the Act and acquitted the accused.

(2.) There is no dispute about Ex.P-1 cheque containing signature of the accused. The banker also did not dispute signature of the accused contained in Ex.P-1. It is contention of the accused that the accused and the complainant's brother Mohanlal did joint business in real-estate ventures and that in that connection, the accused handed over a blank cheque book with his signatures to accommodate the said Mohanlal for running the business. The accused did not let in any evidence in support of his contention. The accused did not even examine himself as a witness in this case. He did not file any documents to prove the alleged joint real estate ventures of himself with Mohanlal. It is contended by the 1st respondent's counsel that even though the accused did not lead any evidence, the complainant could not prove the alleged lending of Rs.70,000/- to the accused. When there is statutory presumption under Section 139 of the Act to the effect that there is legally enforceable debt for the cheque, it is for the accused to lead evidence and to rebut the presumption contained under Section 139 of the Act. In Hiten P. Dalal v. Bratindranath Banerjee AIR 2001 Supreme Court 3897, the Supreme Court observed that Sections 138 and 139 of the Act introduced exceptions to the general rule as to the burden of proof in criminal cases and shifted the onus on the accused, in the following manner: Because both Sections 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras v. A. Vaidyanatha Iyer, AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. it introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (ibid ). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In K.N. Beena v. Muniyappan 2001(2) ALD (Crl.) 824 (SC), the Supreme Court observed that it would be erroneous approach in case the burden is cast on the prosecution/complainant to prove that the cheque was issued for a debt or liability. The Supreme Court further observed that the accused had to prove in the trial by leading cogent evidence that there was no debt or liability and that the accused not having led any evidence could not be said to have discharged the burden cast on him. In Rangappa v. Mohan AIR 2010 Supreme Court 1898 also the Supreme Court held that existence of legally recoverable debt or liability is a matter of presumption under Section 139 of the Act.

(3.) If the present case is scrutinised in the light of above decisions rendered by the Supreme Court, this Court has no hesitation to conclude that the accused/1st respondent made no attempt at all in leading evidence in order to rebut the presumption contained under Section 138 of the Act. The 1st respondent's counsel pointed out certain discrepancies in cross-examination of the complainant as P.W.1 with regard to date of lending money and with regard to date of obtaining money through chit for lending the same to the accused. When the complainant was being examined after four years of the lending, such discrepancies in dates do occur. The said errors in giving dates cannot be taken as a circumstance to rebut the presumption under Section 139 of the Act. Therefore, this Court finds that Ex.P-1 cheque is supported by legally enforceable debt owed by the accused to the complainant.