Rebuttable presumption in cheque dishonour cases defeated where cross-examination undermines proof of consideration and liability.

In a prosecution under Section 138 of the Negotiable Instruments Act, the cheque dishonour and statutory notice were undisputed, but the accused successfully rebutted the presumptions under Sections 118 and 139 by eliciting admissions in cross-examination. The complainant admitted there was no privity of contract with the accused, that the underlying dealings belonged to his brother, and that advancing a large cash amount without any document was improbable. Because the presumptions are rebuttable on a preponderance of probabilities, the burden shifted back to the complainant to prove passing of consideration, which he failed to do. The acquittal was therefore upheld.

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Issues: Whether the complainant proved the ingredients of the offence under Section 138 of the Negotiable Instruments Act, 1881, in view of the presumption under Sections 118 and 139 and the evidence on record.

Analysis: The cheque dishonour and statutory notice were not in dispute, but the accused was found to have rebutted the statutory presumption by bringing out probabilities from the complainant's own cross-examination. The complainant admitted that there was no privity of contract between himself and the accused, that the dealings were of his brother, and that the alleged advancement of a large cash amount without any document was improbable. The presumption under Sections 118 and 139 is rebuttable, and it can be displaced on a preponderance of probabilities, including through admissions elicited in cross-examination. Once rebutted, the burden shifted back to the complainant to prove the passing of consideration, which he failed to do.

Conclusion: The complainant failed to establish the transaction and the passing of consideration necessary to sustain the prosecution under Section 138. The acquittal was therefore upheld.

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