Accused Acquitted in case of Cheque- Dishonour under S.138 of Negotiable Instruments Act, 1881
In a recent Judgment, the accused was acquitted of offence under S.138 of Negotiable Instruments Act, 1881.
It was held that the restriction on the power of Appellate Court in an appeal against the order of acquittal in regard to other offence does not apply with same vigour in the offence under NI Act which entails presumption against the accused.
Once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque/ respondent received the cheque in discharge of a legally enforceable debt or liability are raised against the accused.
However, tresumption under Section 139 of the NI Act is not absolute, and may be controverted by the accused. In doing so, the accused only ought to raise a probable defence on a preponderance of probabilities to show that there existed no debt in the manner so pleaded by the complainant in his complaint/ demand notice or the evidence. Once the accused successfully raises a probable defence to the satisfaction of the Court, his burden is discharged, and the presumption ‘disappears.’ The burden then shifts upon the complainant, who then has to prove the existence of such debt as a matter of fact.
Once Accused had raised a probable defence to the satisfaction of the Court, the presumptions under Sections 118(a) or 139 of the NI Act were no longer in the favour of the Complainant. For this reason, the Complainant having failed to lead evidence to show the existence of the debt/liability, his contentions that there were contradictions in the version of Accused or that the presumptions under Section 118 and 139 of the NI Act were in his favour, do not bolster the case of the Complainant.
Case Reference : Ashok Gaur v. State of NCTD [2025] GCtR 1684 (Delhi)
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