APS FOREX SERVICES PVT. LTD. Vs SHAKTI INTERNATIONAL FASHION LINKERS & ORS. CRIMINAL APPEAL NO. 271 OF 2020
The judgment pronounced by justice M. R. Shah and ASHOK BHUSHAN on February 14, 2020.
Facts
The appellant filed a complaint against responded under section 138 of N.I act for dishonor of cheque. Trial Court acquitting the original Accused-Respondents herein for the offence under Section 138 of the Negotiable Instruments Act (for short, ‘the N.I. Act’) and High Court of Delhi passed an order confirming the judgment and order of acquittal passed by the Learned Trial Court, the original complainant. Feeling aggrieved by the order of the High Court the appellant has preferred the present appeal.
Contentions
Learned Counsel appearing on behalf of the original complainant – appellant herein that both the Courts below have not appreciated and/or considered the presumption in favour of the complainant under Section 139 of the N.I. Act. It is further submitted by Learned Counsel appearing on behalf of the complainant that both the Courts below have materially erred in acquitting the accused. It is submitted that therefore there is a presumption under Section 139 of the N.I. Act in favour of the complainant. It is submitted that thereafter the onus would be upon the accused to rebut the presumption and for that, the accused has to lead the evidence. No such evidence has been produced by the accused.
Learned Counsel for the accused that in the present case the accused has rebutted the presumption under Section 139 of the N.I. Act and has demonstrated and proved that there was no legal liability and/or the dues, due and payable to the complainant.
As observed by the Court, Section 139 of the Act is an example of reverse onus clause and therefore once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter it is for the accused to rebut such presumption by leading evidence.
In the present case while considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque. The cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonored. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the N.I. Act.
Present appeal is accordingly allowed. The original accused respondents herein are held guilty for the offence under Section 138 of the N.I. Act.
View/Download Judgment: CRIMINAL APPEAL NO. 271 OF 2020
– Aarthy K
Comments