TaxTMI 
TaxTMI 
2019 (4) TMI 882
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....) to undergo simple imprisonment for a period of seven months for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'Act') and to pay a lumpsum compensation of Rs. 1,25,000/- to the respondent/ complainant (hereinafter referred to as 'the complainant'). The parties shall be referred to as the accused and the complainant. 2. Brief facts giving rise to the present revision petition are that both, the complainant and the accused, were known to each other. On 30.9.2010 the accused borrowed a sum of Rs. 1,00,000/- from the complainant and on the same day executed a pronote in his own handwriting in favour of the complainant. Thereafter, on 11.12.2012, the accused in discharge of his liability, issued and....
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....icted the accused, as aforesaid, and the said judgment of conviction in turn was upheld by the learned Sessions Judge, Kullu, constraining the accused to file the instant revision petition. 7. It is vehemently argued by Mr. Naveen K. Bhardwaj, learned counsel for the petitioner/accused that the findings recorded by the learned Courts below are perverse and, therefore, deserve to be set-aside and accused deserves to be honourably acquitted. Even though the respondent stood served, however, there is no appearance on his behalf. I have heard learned counsel for the petitioner/accused and have also gone through the material that has come up on record. 8. At the out-set, Sections 118 and 139 of the Act, read as under "118. Pres....
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.... [139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.]" 9. In Rangappa vs. Sri Mohan (2010) 11 SCC 441, the Hon'ble Supreme Court has reiterated and summarized the principles relating to presumption under Sections 118 and 139 of the Negotiable Instruments Act and rebuttal thereof in the following manner: "26. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that....
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.... 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." 10. Ju....
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....t there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and d....
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....y cheque, when loan was taken from the complainant. The borrowed money was returned before 2012, but the complainant misused the security cheque. Therefore, in such circumstances, it cannot be said that the accused has discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case that he had returned the money. This assumes importance because the petitioner had not denied the issuance of cheque. 14. On the other hand, the complainant has led specific evidence to the effect that the accused was known to him and on approaching him to lend some amount, he on assurance gave a sum of Rs. 1,00,000/- for short term as credit without....