TaxTMI 
TaxTMI 
2020 (9) TMI 108
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....d a loan of Rs. 15,00,000/- from the respondent/complainant and the cheque-in-question has been given only as a security for the previous business transaction. The learned counsel further submitted that the trial Court has misconstrued the facts and recorded the findings that the petitioner committed the offence punishable under Section 138 of the Negotiable Instruments Act, which is contrary in the eye of law. The learned counsel also submitted that the respondent/ complainant has failed to establish that there was a legally existing liability/debt against the petitioner/accused. Stating so, the learned counsel prayed to set aside the judgments passed by the Courts below. 3.The learned counsel for the respondent submitted that the trial Court has correctly considered the materials and evidence and has passed the impugned judgment and the findings of the trial Court have been rightly confirmed by the Appellate Court and hence, the judgments of the Courts below do not require any interference in the hands of this Court. 4.Heard the learned counsel appearing for the parties and also perused the materials available on record including the judgments of the Courts below. 5.According ....
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....avour 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." 7.While discussing the scope and ambit of the above two provisions, the Apex Court in Kumar Exports v. Sharma Carpets, [AIR 2009 SC 1518] observed in Para 11 as under: ''11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not ....
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....babilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue." 8.The aforesaid legal position has been reiterated by the Apex Court in a case of Vijay v. Laxman and Another [(2013) 3 SCC 86], wherein, while appreciating various judgments on this issue, it was observed as follows: ''19. ...We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. Sections 118 and 139 of the Negotiable Instruments Act make that abundantly clear. That presumption is, however, rebuttable in nature. What is most important is that the standard of proof required for rebutting any such presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depends upon the facts and circumstances of that case. It is trite that the courts can take into consideration the circumstances appearing in the evidence to determine whether the presumption should be held ....
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....rstly, in regard to the passing of consideration as contained in Section 118(a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both Under Sections 118(a) and 139 are rebuttable in nature. 14. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability. 22. To the same effect is the decision of the Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde [(2008) 4 SCC 54] wherein it was observed: 32. Standard of proof on the part of an accused and that of the prosecution a criminal case is different. xxxxxxxx 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Xxxxxxxx 45. ... Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held t....
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....he same line of reasoning.'' 9.In the light of the aforesaid legal principles, it is to be asertained whether the petitioner/accused in the present case has succeeded to rebut the presumption arising in favour of the respondent/complainant in terms of Section 118 read with Section 139 of the Negotiable Instruments Act. According to the petitioner/accused, he requested the respondent to lend a sum of Rs. 4,00,000/- in the year 2011 and he received Rs. 3,20,000/- after deducting Rs. 80,000/- and at that time, he issued two blank cheques as security; though he discharged the said liability, the respondent failed to return the cheques, which was later misused for the purpose of filing the present complaint. Thus, the main defence raised by the petitioner is that he issued the cheque in question as security for the earlier loan obtained from the respondent. To prove the same, he examined DW1 and DW2, but no document was marked. 10.From the evidence and materials adduced by the parties, it is manifest that the petitioner has not disputed the issuance of cheque in question and the signature found therein. As such, the presumption lies in favour of the respondent that the cheque....