TaxTMI 
TaxTMI 
2024 (3) TMI 221
X X X X Extracts X X X X
X X X X Extracts X X X X
....terest component in cash and in order to pay the principal amount, issued two cheques bearing No.621304 and 621306 both dated 31.12.2010 (Ex.CW1/C & Ex.CW1/E) for an amount of Rs. 4,00,000/- each drawn on ICICI Bank Ltd., Sangrur with assurance of their encashment. However, on presentation of the cheques by the complainant, the same were dishonoured vide memos dated 01.01.2011 (Ex.CW1/B & Ex.CW1/D) with remarks "account closed". Complainant then got issued a legal notice dated 12.01.2011 (Ex.CW1/F) and sent the same to accused through registered post (postal receipts - Ex.CW1/G & Ex.CW1/H) asking him to pay the cheques amount within 15 days of the receipt of the notice. Accused failed to do so and so the complaint was filed on 12.02.2011. 3.1 After recording preliminary evidence, accused was summoned to face prosecution. Upon his appearance, notice of accusation under Section 138 of the Negotiable Instruments Act was served upon him, to which he pleaded not guilty and claimed trial. Complainant then appeared in the witness-box as CW-1 and supported his case with the help of documents Ex.CW1/B to Ex.CW1/H. Statement of the accused under Section 313 Cr.P.C. was recorded, in which he....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sel for the respondent, on the other hand, defended the impugned judgments and submit that all the points as raised in this revision were duly considered by the Courts below and the same were found to contain no merit. Learned counsel contends that presumption in favour of the respondent- complainant under Section 139 of the Negotiable Instruments Act, has not been rebutted by the accused- petitioner. Prayer is made for dismissal of the petition. 6. I have considered submissions of both the sides and have perused the record carefully. 7. Petitioner does not dispute his signature on any of the two cheques in question. His defence is that said cheques have been misused by the complainant. Once signature on the cheques are not in dispute, there is a presumption of legal liability under Section 139 of the Negotiable Instruments Act to be read with Section 118 of the Act, in favour of the complainant, though the said presumption is rebuttable. 8. Section 139 and Section 118 clause (a) & (b) of the Negotiable of Instruments Act read as under:- "139. Presumption in favour of holder. - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gal position that it is required to be seen that whether accused has been able to probabilise his defence. Here itself, it may be noted that the accused is not required to prove his defence on the standard of proof 'beyond reasonable doubt' and rather, he is simply required to probabilise his defence. The presumption under Section 139 of the Act can be rebutted even by evidence led by the complainant; and it is not required for the defence to lead evidence to rebut presumption, as has been held by the Hon'ble Supreme Court in Shiv Kumar Vs. Ram Avtar Aggarwal, 2020(2) RCR (Crl.) 147. 11. In order to rebut the presumption available to complainant under Section 139 of the NI Act, accused can either appear in the witness box though it is not mandatory; or he can elicit circumstances favourable to him during the cross-examination of complainant; or put forth his defence in his statement under Section 313 Cr.P.C. supported by evidence. Here itself, it may be noted that statement of accused under Section 313 Cr.P.C is not a substantive piece of evidence. If accused put forth his defence in said statement, he must support it with evidence. Reliance can be placed on Sumeti Vij Vs. M/s Par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e mandate of presumption of consideration in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the Act." 15. Similarly, in Rohitbhai Jivanlal Patel v. State of Gujarat & another (2019) 18 SCC 106, it was held by the Hon'ble Supreme Court that : "In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing the loan to the accused and want of examination of the relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had 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 could not have been raised for want of evide....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s ever the accountant of the accused. He further denied to have withdrawn Rs. 65,000/- from the account of the accused in the year 2006 or another amount of Rs. 1,65,000/- or to have cheated the accused. Though he admitted that he had withdrawn amount of Rs. 70,000/- from the bank in which accused had maintained his account but explained that amount was withdrawn by him through cheque number 700820, which was earlier deposited by him in the account of the accused. 20. DW-1 Kulvir Singh, the Clerk of State Bank of India proved on record certain cheques belonging to the account of the accused Hakam Singh, the payments of which were received by the complainant. However, learned Trial Court rightly observed that the cross-examination of the witness did not in any manner reveal that withdrawing of the amount of Rs. 20,000/-, Rs. 45,000/- or Rs. 70,000/- by the complainant, in any way proved that he was employee or accountant with the accused any point of time. 21. DW3 Baghwan Singh, who deposed that complainant used to work as accountant in the factory of the accused, has been found to be an interested witness, inasmuch as he admitted that he and accused are good friends and had even ....