Probable defence and rebuttal of Section 139 presumption defeat cheque dishonour conviction without accused testimony.

In a Section 138 prosecution under the Negotiable Instruments Act, 1881, the statutory presumption under Section 139 was rebutted because the complainant's witness could not satisfactorily explain the underlying transaction, issuance of the cheque, or the alleged liability. The court held that the accused was not obliged to enter the witness box and could establish a probable defence through cross-examination and surrounding circumstances. On the materials on record, the defence that the cheque had been issued earlier as security and that no subsisting legally enforceable debt was shown was accepted. The conviction was therefore unsustainable and the accused was entitled to acquittal.

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Issues: Whether the conviction under Section 138 of the Negotiable Instruments Act, 1881 could stand when the accused raised a probable defence and rebutted the presumption under Section 139 of that Act.

Analysis: The cheque and its dishonour were proved, but the witness examined for the complainant was unable to explain the transaction, the issuance of the cheque, or the liability in any meaningful manner. The person stated to be in charge of the relevant transactions was not examined. The accused was not required to enter the witness box in every case; the defence could be established by cross-examination and surrounding circumstances. On the materials available, the defence that the cheque had been issued earlier as security and that no subsisting liability was shown was treated as a probable defence sufficient to rebut the statutory presumption.

Conclusion: The conviction was unsustainable, the presumption under Section 139 stood rebutted, and the accused was entitled to acquittal.

Ratio Decidendi: In a prosecution under Section 138 of the Negotiable Instruments Act, 1881, the accused may rebut the presumption under Section 139 by raising a probable defence through cross-examination and the evidence on record, without necessarily entering the witness box, and the complainant must still establish the existence of a legally enforceable liability.

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