The Supreme Court has observed that the rebuttal of presumption available under Section 139 of Negotiable Instruments Act can only be done after adducing evidence. “Rebuttal can be made with reference to the evidence of the prosecution as well as of defence.”
Expressing its ‘full agreement’ with the view adopted by the High Court, the bench added that the rebuttal can be made with reference to the evidence of the prosecution as well as of defense while dismissing the appeal.
Presumption under section 139 of Negotiable Instruments Act
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 to be sufficiently rebutted. The legal position regarding the standard of proof required for rebutting a presumption is fairly well settled by a long line of decisions of this Court. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove 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. 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.”
In the case of M.S. Narayana Menon v. State of Kerala, while dealing with a case under Section 138 of the Negotiable Instruments Act, 1881, Supreme Court held that “the presumptions under Sections 118(a) and 139 of the Act are rebuttable and the standard of proof required for such rebuttal is preponderance of probabilities and not proof beyond reasonable doubt.”
Mr. Mahesh Jethmalani, learned senior counsel appearing for the appellant contends that Judicial Magistrate First Class could have examined the materials filed along with the complaint and from the materials which were brought on the record it was clear that there was no legally enforceable debt hence there was no case for taking cognizance of the offence and registering the criminal complaint. The presumption available under Section 139 of NI Act has to be rebutted and that rebuttal can only be done after adducing evidence. This, by itself clearly reflects that the rebuttal presumption cannot be looked into at the stage of the Court taking cognizance of the offence and registering the case, all that Court would have to see is whether there is a prima facie case made out meeting the conditions precedent as envisaged under Section 138 of NI Act, which in the instant case, in the opinion of this Court, the Respondent has in fact been able to establish and fulfill all such ingredients. As has been stated in the preceding paragraphs since there is a presumption to be drawn of there being a debt or liability in part or in whole of the drawer to the holder of the instrument, the Court below cannot be said to have faulted upon in taking cognizance and in registering the offence. Since it is a rebuttal presumption and all the contentions and averments made by the counsel for the Petitioner being his defence, it would be open for him to raise all these grounds at the stage of leading evidence including the defence of existence of legally enforceable debt or liability. However, there can be no doubt that at the time of filing of complaint there was always initial presumption which would be in favour of the complainant.”
Order of the court
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1688 OF 2017 SHIV KUMAR ALIAS JAWAHAR SARAF APPELLANT(S)
RAMAVTAR AGARWAL RESPONDENT(S)
Heard Mr. Mahesh Jethmalani, learned senior counsel appearing for the appellant and Mr. Vikas Singh, learned senior counsel appearing for the respondent.
This appeal has been filed against the judgment of the High Court by which Criminal Miscellaneous Petition filed by the appellant, praying for quashing the order passed by Sessions Judge, Bilaspur in Criminal Revision has been dismissed. The Criminal Revision was filed against the order dated passed by Judicial Magistrate First Class, Bilaspur taking cognizance and registering the complaint case against the appellant for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “NI Act”). The appellant had issued a post dated cheque of Central Bank of India, Main Branch, Bilaspur amounting to Rs.7.8 Crores in favour of the respondent. The cheque was presented by the respondent which was dishonoured. A legal notice was issued by the respondent, which was received by appellant. Notice was replied denying the claim put forth by the respondent. Hence, complaint was filed before the Judicial Magistrate First Class. Judicial Magistrate First Class, taking into consideration materials on the record vide order took cognizance of offence and registered a criminal complaint. Criminal Revision was filed against the said order before the District Judge, which was dismissed by the District Judge. For quashing the said order Criminal Revision was filed.
Thus, at this stage do not find any error in the impugned judgment of the High Court dismissing the criminal miscellaneous petition. With these observations, the appeal is dismissed. However, it shall be open for the appellant to raise all his pleas before the Trial Court.
………….J. [ASHOK BHUSHAN]
………….J. [K.M. JOSEPH]
NEW DELHI; FEBRUARY 19, 2020.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje