Mere denial of presumption U/S 139 of NI Act does not amount to rebuttal: Apex Court
The Supreme Court once again stressed that the accused in a case of dishonour of cheque should rebut the presumption found in section 139 and cannot just barely deny that he is not liable.
( Kishan Rao vs Shankargouda in criminal appeal no 803 of 20318 )
Referring to the case titled State of Kerala vs. Puttumana Illath Jathavedan Namboodiri, the Court said of revisional jurisdiction of the High Court, “…the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice
Referring to the Apex Court verdict in Kumar Exports vs. Sharma Carpets, the bench said, “…it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge , in whole or in part, of any, of any debt or other liability”.
“To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist,…..it reiterated....”
The Apex Court, as in various cases, reiterated that the accused has to produce evidence against the existence of any debt/liability to shift the burden on the complainant.
In the present case, the Apex Court considering that the accused did not rebut the presumption at the trial court as well as at the high court set aside the judgment of the High Court upholding the orders of the Trial Court convicting the accused under section 138 of the NI Act.
Dr. Gubbi. S. Subba Rao
Counselor & Advocate