The Himachal Pradesh High Court has reiterated that if the accused/drawer of the cheque neither raises a probable defence nor contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the NI Act, regarding commission of the offence comes into play.
The single-judge bench of Justice Sandeep Sharma added that that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
In the Criminal Revision filed, a cheque drawer was challenging the judgment of conviction passed by the Magistrate and its confirmation in appeal. It was alleged that the cheque in question was drawn by the petitioner to satisfy his legal liability towards a loan.
The Court after perusing the evidence on record rejected the petitioner's argument and rather concluded that the trial court had meticulously dealt with each and every aspect of the matter and despite there being sufficient opportunities, it was the petitioner-accused who failed to repay the amount taken from the complainant as loan.
It added that interestingly there is no denial on behalf of accused with regard to issuance of cheque and signatures thereupon. The accused had claimed that he did not take any loan from the Bank and property of wife was mortgaged on account of her having availed facility of loan.
Once there is no denial of issuance of cheque and signatures thereupon, presumption as available under Ss.118 and 139 comes into play. Section 118 and 139 of the Act clearly provide that 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 debt or other liability. True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant."
It referred to Rohitbhai Jivanlal Patel Vs. State of Gujarat, 2019 Latest Caselaw 289 SC, M/s Laxmi Dyechem Vs. State of Gujarat & Ors., 2012 Latest Caselaw 674 SC
"If the cross-examination of this witness is perused in its entirety, it can be safely concluded that the defence was unable to shatter the testimony of said witness or extract anything contrary to what this witness stated in his examination-in-chief."
Having scanned the entire material available on record, the Court found that the complainant proved on record that the cheque was issued by the accused in discharge of legally enforceable liability, but the same was dishonoured on its presentation, as such, complainant had no option but to institute proceedings under S. 138 of Act.
"If the evidence, be it ocular or documentary, adduced on record by complainant is perused, it can be safely concluded that the complainant has proved all the basic ingredients as required to be proved to bring the case within the ambit of S. 138 of the Act."
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(With input from news agency language)
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