Рет қаралды 18,370
#Cheque_Dishonour #Conviction_Under_Section138_NI_ACT
On 07th March, 2022, a Division Bench of SC dealt two questions:
First : What is the significance of “Reply given by accused to the Demand Notice” of complainant?
Second: What is the onus of the accused under the Theory of “Probable Defence” and how he can discharge?
Court below:
The Court of Magistrate convicts under section 138 NI Act and sentenced to simple imprisonment for a period of one year with fine of Rs.5000/- and to pay a compensation of Rs.7 Lakhs.
The Sessions Judge affirmed this order in appeal and the High Court dismissed the Criminal Revision. So the concurrent finding of 3 courts.
#TEDHI_SINGH_Vs._NARAYAN_DASS_MAHANT
CRIMINAL APPEAL NO.362 OF 2022
Facts in complaint: In the month of August, 2011 Narayan Das gave a friendly loan of Rs. 7 lacs in cash to Tedhi Singh. The cheque given by Tedhi Singh for discharge of loan was dishonored.
In the trial, accused Tedhi Singh examined officers of four banks where Narayan Das had account to develop ‘a probable defence’ that complainant had no financial capacity to pay the alleged loan.
The High Court did not consider these witnesses and observed that what is the purpose for examining these four bank persons by accused?
Division Bench of Justice K.M. JOSEPH & Justice HRISHIKESH ROY
What is Probable defence and what the court looks into:
We all know: Presumption in favor of Negotiable Instruments are given in Sections 118(a) and 139 of NI Act.
The #Presumption_under_Section_139 is a rebuttable presumption and the onus is on the accused to raise the probable defence with positive evidence.
There is a Caveat: Accused has not to prove his case beyond reasonable doubt but to show the preponderance of probabilities.
Important point: The Presumption under section 139 NI Act gives reverse onus which is not applicable in common criminal law. But this onus on accused is lesser and he has to show only a “Probable defence”. Then the onus shifts to Complainant.
Accused can rebut the presumption by leading the evidence or by relying on the evidence of the complainant. He can rebut the presumption by reference to the circumstances of the case.
It is not necessary for the accused to come in the witness box to support his defence.”
In Basalingapa Vs. Mudibasappa reported in (2019) 5 SCC 418, the Court stated that in case of cash transaction, the accused can raise a probable defense by questioning the financial capacity of the complainant. Once the said question is raised, the onus shifts on the complainant to prove his financial capacity.
Now coming to present case:
The witnesses from bank of Complainant shown that he had not that much money in bank as alleged by complainant.
SC observed: It is true that the High Court has not appreciated the real purpose of examining bank officers. But it was a probable defence.
The Trial Court and the First Appellate Court stated that the proceeding under section 138 NI Act is not a civil suit so the complainant is not show is capacity in the first instance. Unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal/capacity, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity.
SC agreed with this aspect of Trial court. The accused ought to have set up this defence in his reply to notice.
SC concluded: SC modified the order and substituted the sentence of imprisonment of one year with a fine to a sum of Rs.5,000/- and vacated the imprisonment of one year.