Case Note & Summary
The appellant, Harendra Ramchandra Pathak, filed a criminal appeal against the acquittal of respondent no.1, Rajendra Ratan Mhatre, by the Judicial Magistrate First Class, Kalyan, for an offence under Section 138 of the Negotiable Instruments Act, 1881. The appellant alleged that the respondent owed him Rs.32 lakhs from business transactions and issued a cheque dated 3rd May 1999 for that amount, which was dishonoured with the endorsement 'refer to drawer'. The appellant issued a legal notice, but the respondent did not pay, leading to the complaint. The respondent denied liability, claiming the cheque did not bear his signature and that he had not issued it. In his statement under Section 313 CrPC, he stated he did not issue the cheque and nothing was payable. In cross-examination, it was suggested that the respondent used to leave blank signed cheques with the appellant for business purposes. The trial court acquitted the respondent, and the appellant appealed. The High Court considered the presumption under Section 139 of the Act, which presumes that the cheque was issued for a debt or liability. However, the court noted that this presumption is rebuttable. The respondent's defence that the cheque was blank and misused, along with the suggestion in cross-examination, was sufficient to rebut the presumption on a preponderance of probabilities. The burden then shifted to the appellant to prove the existence of a legally enforceable debt, which he failed to do. The appellant's evidence was not credible, and he did not produce any documentary evidence of the alleged transactions. The High Court held that the trial court's acquittal was proper and dismissed the appeal.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption under Section 139 - Rebuttal - The accused can rebut the presumption under Section 139 by raising a probable defence, and the burden then shifts to the complainant to prove the existence of a legally enforceable debt or liability. In this case, the accused's defence that the cheque was blank and misused was sufficient to rebut the presumption, and the complainant failed to prove the debt. (Paras 3-6) B) Criminal Procedure Code - Statement under Section 313 - Evidentiary Value - The statement of the accused under Section 313 CrPC can be taken into consideration to assess the defence raised. The accused's denial of issuing the cheque and the suggestion in cross-examination that blank cheques were left with the complainant were considered. (Paras 2, 5) C) Evidence - Burden of Proof - Standard of Proof - In cheque dishonour cases, the standard of proof for the accused to rebut the presumption is preponderance of probabilities, not beyond reasonable doubt. The accused's defence need only be probable, not proved beyond doubt. (Para 6)
Issue of Consideration
Whether the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 was proper given the presumption under Section 139 and the evidence on record.
Final Decision
Appeal dismissed. The acquittal of respondent no.1 by the Judicial Magistrate First Class, Kalyan, is confirmed.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881 is rebuttable
- accused can rebut by raising probable defence
- burden on complainant to prove legally enforceable debt or liability
- standard of proof is preponderance of probabilities
