AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 749
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....noured. Consequently, a legal notice was issued and despite receipt thereof, the respondent failed to make the payment, hence the complaint. On the basis of preliminary evidence led by the complainant, respondent/accused was summoned and he claimed trial by pleading not guilty. 3. The appellant, besides examining herself as CW-1, has placed on record number of documents as:- (i) affidavit of examination-in-chief (Ex.CW1/A), (ii) cheque (Ex.CW1/B), intimation letter (Ex.CW1/C), return memo (Ex.CW1/D), legal notice (Ex.CW1/E), postal receipt (Ex.CW1/F) and unclaimed registered letter (Ex.CW1/G). 4. The respondent sought time to produce his evidence in defence, but ultimately his defence was closed by the learned trial Court and on an application under Section 311 of the Code of Criminal Procedure, he was permitted to place on record copies of two complaints Ex.D-1 and Ex.D-2 moved by one Shri Rasal Singh as well as another by his wife. 5. Learned trial Magistrate, after considering the evidence dismissed the complaint and acquitted the respondent vide impugned judgment dated 12.12.2018, passed in Complaint No.66-1/2013, titled as Sunit Devi versus Ashish Thakur. 6. It is vehement....
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....ce Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words 'proved' and 'disproved' have been defined in Section 3 of the Evidence Act (the interpretation clause).... 30.Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. * * * 32.The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon ....
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....ove 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. 23. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary......." 14. Section 139 of the Act provides for drawing a presumption in favour of the holder and the Hon'ble Supreme Court in Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513 has considered the provisions of the Act as well as Evidence Act and observed as under:- "14. Section 139 of the Act provides that 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. 15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue not....
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.... is over." 15. The Hon'ble Supreme Court thereafter held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. 16. In Rangappa vs. Sri Mohan, (2010) 11 SCC 441, Hon'ble three Judges Bench of the Hon'ble Supreme Court had occasion to examine the presumption under Section 139 of the Act and it was held that in the event the accused is able to raise a probable defence which creates doubt with regard to the existence of a debt or liability, the presumption may fail. It is apposite to refer to the relevant observations which read as under:- "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 extent, the impugned observations in Krishna Janardhan Bhat v. Dattatraya G.Hegde (2008) 4 SCC 54 may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebut....
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....utted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption. This Court held "however, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act". 23. In Kumar Exports, vs. Sharma Carpets (2009) 2 SCC 513, this Court reiterated that there is a presumption that every negotiable instrument duly executed, is for discharge of a debt or liability, but the presumption is rebuttable by proving the contrary. In the facts and circumstances of the case it was found that the cheque in question was towards advance for purchase of carpets, which were in fact not sold by the payee of the cheque to the drawer, as proved from the deposition of an official of the Sales Tax Department, who stated that the payee had admitted that he had not sold the carpets. 24. In K.N. Beena v. Muniyappan (2001) 8 SCC 458, this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the che....