2019 (6) TMI 749 - HC - Indian Laws

High Court emphasizes statutory presumptions in Section 138 case, sets aside acquittal, mandates re-hearing

Sunita Devi Versus Ashish Thakur

The High Court set aside the trial court's acquittal of the respondent under Section 138 of the Negotiable Instruments Act, emphasizing the need to ... Dishonor of Cheque - presumption under Section 139 of the Act - rebuttal was “preponderance of probability” - proof beyond reasonable doubt - HELD THAT:- Noticeably, the only basis on which the learned trial Court drew the conclusion that the complainant being successful in rebutting the presumption attached to Negotiable Instrument by virtue of Sections 118 (a) and Section 139 of the Act, was the statement of the respondent recorded under Section 313 of the Code of Criminal Procedure. Admittedly, the respondent did not enter into the witness box by examining himself as a witness and thereafter affording an opportunity to the petitioner-complainant to cross-examine him. In the given facts and circumstances of the case, the mere fact that the respondent had in his statement under Section 313 of the Code of Criminal Procedure stated that he had given a cheque to one Rasal Singh and not to the complainant could not have been acted upon much less formed the basis or drew inference that the presumption attached by virtue of the aforesaid Sections had been rebutted. This Court need not express any opinion on the merits of the case or the same may prejudice any of the parties. Therefore, in the given circumstances, this Court has no other option but to set-aside the order of acquittal passed by learned trial Magistrate and direct it to re-hear the matter bearing in mind the provisions, more particularly, those contained in Sections 118 and 139 of the Act. Issues Involved:1. Acquittal of the respondent under Section 138 of the Negotiable Instruments Act, 1881.2. Presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act.3. Standard of proof for rebutting the presumption under Sections 118(a) and 139.4. Re-evaluation of the trial court's judgment based on the correct legal standards.Issue-wise Detailed Analysis:1. Acquittal of the respondent under Section 138 of the Negotiable Instruments Act, 1881:The appellant, who is the complainant, filed an appeal against the acquittal of the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The complainant had filed a complaint under Section 138 read with Section 142 of the Act and Section 420 of the Indian Penal Code, alleging that the respondent issued a cheque for Rs. 3,00,000, which was dishonored upon presentation. Despite receiving a legal notice, the respondent failed to make the payment, leading to the complaint. The trial court, after considering the evidence, dismissed the complaint and acquitted the respondent.2. Presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act:The trial Magistrate referenced Sections 118(a) and 139 of the Act but did not appropriately consider the presumptions these sections entail. Section 118(a) presumes that every negotiable instrument is made for consideration, while Section 139 presumes that the holder of a cheque received it for discharging a debt or liability. The trial court failed to keep these presumptions in mind, which are crucial for cases under Section 138 of the Act.3. Standard of proof for rebutting the presumption under Sections 118(a) and 139:The Supreme Court has clarified that the presumptions under Sections 118(a) and 139 are rebuttable. The standard of proof required for rebuttal is 'preponderance of probability' and not 'beyond reasonable doubt.' The trial court erred by not recognizing that the respondent needed to provide evidence to rebut the presumption. The respondent's mere statement under Section 313 of the Code of Criminal Procedure, without entering the witness box or being cross-examined, was insufficient to rebut the presumption.4. Re-evaluation of the trial court's judgment based on the correct legal standards:The High Court noted that the trial court's conclusion that the respondent rebutted the presumption was based solely on the respondent's statement under Section 313 of the Code of Criminal Procedure. This was insufficient as the respondent did not testify or allow cross-examination. The High Court emphasized that the trial court should have considered the statutory presumptions and the standard of proof required to rebut them. Consequently, the High Court set aside the trial court's order of acquittal and directed a re-hearing of the matter, taking into account the provisions of Sections 118 and 139 of the Act.Conclusion:The High Court found merit in the appeal, set aside the trial court's judgment, and directed the trial court to re-hear the case, ensuring proper consideration of the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act. The parties were directed to appear before the trial Magistrate on 17.06.2019. The appeal was disposed of accordingly.