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2025 DAILYLAW 3831 (HP)

Nand Lal Thakur v. Mukhtyar Singh

2025-10-30

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 28.2.2012, passed by learned Chief Judicial Magistrate, Bilaspur, H.P., vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 (NI Act). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the accused is the proprietor of M/s Banyal Hatcheries and Breeding Farm at Village Bhagatpur, P.O. Talai, Tehsil Jhandutta, District Bilaspur, H.P. He was taking feed on a credit basis from M/s Thakur Cattle and Poultry Feeds, Village Gauri, P.O. Rani Kotla, Tehsil Sadar, District Bilaspur, H.P. There was a dispute between the accused and the supplier Smt. Anjana Thakur, Proprietor of M/s Thakur Cattle and Poultry Feeds. The accused requested the complainant to intervene. The complainant paid Rs.1,50,000/- on behalf of the accused to Smt. Anjana Thakur, Proprietor of Thakur Cattle and Poultry Feeds. The accused issued a post- dated cheque in favour of the complainant for Rs.1,50,000/- to return the amount paid by the complainant. The complainant presented the cheque for its collection to the State Bank of India, Branch Talai, but it was dishonoured with an endorsement ‘insufficient funds’. The complainant issued a notice to the accused on 6.6.2007, asking him to repay the money; however, the accused failed to do so, hence a complaint was filed before the learned Trial Court for taking action as per law. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried. 4. The complainant examined himself (AW1), Amar Singh (AW2) and Amar Nath (AW3). 5. The accused, in his statement, recorded under Section 313 of Cr.P.C., denied the complainant’s case in its entirety. He examined Anjana Thakur (DW1), Proprietor of M/s Thakur Cattle and Poultry Feed, in defence. 6. 4. The complainant examined himself (AW1), Amar Singh (AW2) and Amar Nath (AW3). 5. The accused, in his statement, recorded under Section 313 of Cr.P.C., denied the complainant’s case in its entirety. He examined Anjana Thakur (DW1), Proprietor of M/s Thakur Cattle and Poultry Feed, in defence. 6. Learned Trial Court held that the complainant had not stated in his examination-in-chief that he had paid Rs.1,50,000/- to Smt. Anjana Thakur, Proprietor of M/s Thakur Cattle and Poultry Feeds which made his claim doubtful. He admitted in his cross-examination that Anjana Thakur is his wife. He did not produce any bills for the feed supplied by M/s Thakur Cattle and Poultry Feeds to the accused. No acknowledgement was placed on record to show that the notice was served upon the accused. The statement of Anjana Thakur also made the complainant’s case suspect. Hence, the accused was acquitted of the commission of an offence punishable under Section 138 of the NI Act. 7. Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present appeal, asserting that the learned Trial Court erred in acquitting the accused. It was wrongly held that no notice was received by the accused. The complainant stated this fact on oath, and his testimony to this effect was not challenged. The notice was sent to the correct address and is deemed to be served. The accused admitted the issuance of the cheque, and a presumption would arise that it was issued in discharge of the liability for consideration, and the burden would shift upon the accused to rebut the presumption. The evidence of the accused was insufficient to rebut the presumption. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr P.K. Verma, learned counsel for the appellant/complainant and Mr Skandh Sharma, learned counsel for the respondent/accused. 9. Mr P.K. Verma, learned counsel for the appellant/complainant, submitted that the accused did not dispute the issuance of the cheque, and a presumption would arise that the cheque was issued for consideration in discharge of the liability. The burden would shift upon the accused to rebut the presumption. The accused failed to rebut the presumption by leading any satisfactory evidence. The learned Trial Court erred in holding that the notice was not served upon the accused. The burden would shift upon the accused to rebut the presumption. The accused failed to rebut the presumption by leading any satisfactory evidence. The learned Trial Court erred in holding that the notice was not served upon the accused. The notice was sent to the correct address and is deemed to be served. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr Skandh Sharma, learned counsel for the respondent/accused, supported the judgment passed by the learned Trial Court and submitted that the learned Trial Court had taken a reasonable view while deciding the complaint. This Court should not interfere with the reasonable view of the learned Trial Court. Therefore, he prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed: “11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31 encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29. 39. This Court in Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31 encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325), SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in the case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 40. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 40. Further, in H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748, this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) 8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity. 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. That the judgment of acquittal suffers from patent perversity. 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 13. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 14. The complainant (AW1) asserted in the complaint that he had paid an amount of Rs.1,50,000/- on behalf of the accused to the owner of M/s Thakur Cattle and Poultry Feed, and the accused issued a cheque of Rs.1,50,000/-, drawn on State Bank of India, to repay the amount. He deposited the cheque, but it was dishonoured with an endorsement ‘insufficient amount’. He admitted in his cross-examination that Thakur Cattle and Poultry Feeds is owned by his wife, Smt. Anjana Thakur. The firm is registered. He could not say whether the account is maintained by the firm or not. He did not know about the bills or the amount to be recovered by Anjana Thakur. He denied that a blank cheque was issued by the accused, which was filled in by him. He stated that he had not obtained any receipt from Anjana Thakur. 15. Learned Trial Court held that the complainant failed to specify the amount due to Anjana Thakur by the accused, and that he did not produce the bills to show the liability of the accused towards Thakur Poultry Feed, which made his case suspect. These findings cannot be sustained. The complainant specifically stated that he had paid the money on behalf of the accused to Anjana Thakur because of a dispute between the accused and Anjana Thakur. These findings cannot be sustained. The complainant specifically stated that he had paid the money on behalf of the accused to Anjana Thakur because of a dispute between the accused and Anjana Thakur. The complainant never asserted that he had supplied the feed to the accused, and he could not have possessed the bills or the accounts; hence, his case could not have been doubted in the absence of the bills or the accounts. 16. The accused examined Anjana Thakur (DW1), who stated that she is the proprietor of M/s Thakur Cattle and Poultry Feed. The complainant is her husband. The accused dealt with the firm, but she did not have any record. The record would be with the salesman Durga Singh; however, he had left the shop in the year 2008. The complainant paid Rs.1,50,000/- to her on behalf of the accused, but she had not issued any receipt. She did not have any record to show that she had any transaction of Rs.1,50,000/-. She stated in her cross-examination that the accused was to pay more than Rs.1,50,000/- to her in January 2007. The complainant paid the money on behalf of the accused, and the accused issued a cheque in favour of the complainant. The complainant had paid the money to her before the issuance of the cheque by the accused. 17. She has been put forth as a witness of truth by the accused, and her statement is binding upon him. She categorically stated that the complainant had paid Rs.1,50,000/- to her on behalf of the accused, and this statement has to be accepted as correct against the accused. Her statement proved the complainant’s case that the complainant had paid Rs.1,50,000/- on behalf of the accused, and the findings recorded by the learned Trial Court that the complainant had failed to prove the payment of Rs.1,50,000/- to Anjana Thakur cannot be sustained. 18. Anjana Thakur was cited as a witness by the accused. He put her questions in examination-in-chief, which are in the nature of cross-examination without seeking leave of the Court. It is impermissible to cross-examine a witness produced by a party without seeking leave of the Court. Thus, much of the examination-in-chief of Anjana Thakur cannot be looked into. 19. 18. Anjana Thakur was cited as a witness by the accused. He put her questions in examination-in-chief, which are in the nature of cross-examination without seeking leave of the Court. It is impermissible to cross-examine a witness produced by a party without seeking leave of the Court. Thus, much of the examination-in-chief of Anjana Thakur cannot be looked into. 19. The accused suggested to the complainant that he had issued a blank signed cheque to the complainant during business transactions, which means that the accused had not disputed the issuance of the cheque. It was rightly submitted on behalf of the complainant that a presumption would arise that the cheque was issued for consideration to discharge the liability, and the burden would shift upon the accused to rebut the presumption. It was laid down by the Hon'ble Supreme Court in APS Forex Services (P) Ltd. v. Shakti International Fashion Linkers (2020) 12 SCC 724 , that when the issuance of a cheque and signature on the cheque are not disputed, a presumption would arise that the cheque was issued in discharge of the legal liability. It was observed: - “7.2. What is emerging from the material on record is that the issuance of a cheque by the accused and the signature of the accused on the said cheque are not disputed by the accused. The accused has also not disputed that there were transactions between the parties. Even as per the statement of the accused, which was recorded at the time of the framing of the charge, he has admitted that some amount was due and payable. However, it was the case on behalf of the accused that the cheque was given by way of security, and the same has been misused by the complainant. However, nothing is on record that in the reply to the statutory notice, it was the case on behalf of the accused that the cheque was given by way of security. Be that as it may, however, it is required to be noted that earlier the accused issued cheques which came to be dishonoured on the ground of “insufficient funds” and thereafter a fresh consolidated cheque of Rs.9,55,574 was given which has been returned unpaid on the ground of “STOP PAYMENT”. Therefore, the cheque in question was issued for the second time. Therefore, the cheque in question was issued for the second time. Therefore, once the accused has admitted the issuance of a cheque which bears his signature, there is a presumption that there exists a legally enforceable debt or liability under Section 139 of the NI Act. However, such a presumption is rebuttable in nature, and the accused is required to lead evidence to rebut such a presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid. 9. Coming back to the facts in the present case and considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the NI Act that there exists a legally enforceable debt or liability. Of course, such a presumption is rebuttable. However, to rebut the presumption, the accused was required to lead evidence that the full amount due and payable to the complainant had been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption, and more particularly, the cheque in question was issued for the second time after the earlier cheques were dishonoured. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists a legally enforceable debt or liability as per Section 139 of the NI Act. It appears that both the learned trial court as well as the High Court have committed an error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139 of the NI Act. It appears that both the learned trial court as well as the High Court have committed an error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139 of the NI Act. As observed above, Section 139 of the Act is an example of reverse onus clause and therefore, once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter, it is for the accused to rebut such presumption by leading evidence.” 20. The presumption under Section 139 of the NI Act was explained by the Hon’ble Supreme Court in N. Vijay Kumar v. Vishwanath Rao N., 2025 SCC OnLine SC 873 as under: “5. The NI Act raises two presumptions, one under Section 118 and the other in Section 139 thereof. The Sections read as under: “118. Presumptions as to negotiable instruments. — Until the contrary is proved, the following presumptions shall be made: — (a) of consideration: —that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; x xx 139. Presumption in favour of the holder. — 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.” 6. Section 118 (a) assumes that every negotiable instrument is made or drawn for consideration, while Section 139 creates a presumption that the holder of a cheque has received the cheque in discharge of a debt or liability. Presumptions under both are rebuttable, meaning they can be rebutted by the accused by raising a probable defence. This Court, through various pronouncements, has consistently clarified the nature and extent of these presumptions and the standard of proof required by the accused to rebut them. We may consider a few such pronouncements. 6.1. In Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm (2008) 7 SCC 655 , this Court observed as under: “17. This Court, through various pronouncements, has consistently clarified the nature and extent of these presumptions and the standard of proof required by the accused to rebut them. We may consider a few such pronouncements. 6.1. In Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm (2008) 7 SCC 655 , this Court observed as under: “17. Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non- existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. In this connection, reference may be made to a decision of this Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [ (1999) 3 SCC 35 ]. In para 12 of the said decision, this Court observed as under: (SCC pp. 50-51) “12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case, including that of the plaintiff as well. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case, including that of the plaintiff as well. In cases where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of the presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence, as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist.” From the above decision of this Court, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of the presumption arising under Section 118(a) in his favour.” (Emphasis Supplied) 6.2. In Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 , this Court examined the presumptions raised by the N.I. Act, and held as follows: “18. In Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 , this Court examined the presumptions raised by the N.I. Act, and held as follows: “18. Applying the definition of the word “proved” in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase “until the contrary is proved” in Section 118 of the Act and use of the words “unless the contrary is proved” in Section 139 of the Act read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that, under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. 20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that, under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions, an accused is not expected to prove his defence beyond a reasonable doubt, as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently, would not serve the purpose of the accused. Something probable has to be brought on record to shift the burden of proof shifted to the complainant. 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. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence, and if the circumstances so relied upon are compelling, the burden may likewise shift again onto the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act, to rebut the presumptions arising under Sections 118 and 139 of the Act. 21. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act, to rebut the presumptions arising under Sections 118 and 139 of the Act. 21. The accused also has an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or, in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.” (Emphasis Supplied) 6.3. A three-Judge Bench of this Court in Rangappa (supra) had the occasion to consider Section 139 elaborately. The Court reiterated that where the signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertained to a legally enforceable debt or liability; however, this presumption is of a rebuttable nature and the onus is then on the accused to raise a probable defence. It was further stated that: “27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses, and the defendant-accused cannot be expected to discharge an unduly high standard of proof. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses, and the defendant-accused cannot be expected to discharge an unduly high standard of proof. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of “preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence, and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 6.4. T.S. Thakur J., (as his lordship then was) in his supplementing opinion in Vijay v. Laxman (2013) 3 SCC 86 , observed as under: “20. The High Court has rightly accepted the version given by the respondent-accused herein. We say so for more than one reason. In the first place, the story of the complainant that he advanced a loan to the respondent-accused is unsupported by any material, let alone any documentary evidence that any such loan transaction had ever taken place. So much so, the complaint does not even indicate the date on which the loan was demanded and advanced. It is blissfully silent about these aspects, thereby making the entire story suspect. We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. 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. 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.” 6.5. This Court, in the case of Baslingappa v. Mudibasappa (2019) 5 SCC 418 , summarised the principles on Sections 118(a) and 139 of the N.I. Act. The same is reproduced with profit as under: “25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner: 25.1. Once the execution of a cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption, and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him, or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come into the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come into the witness box to support his defence.” 6.6. Recently, a coordinate Bench of this Court in Rajaram v. Maruthachalam (2023) 16 SCC 125 , through Gavai J., observed as under: “27. 25.5. It is not necessary for the accused to come into the witness box to support his defence.” 6.6. Recently, a coordinate Bench of this Court in Rajaram v. Maruthachalam (2023) 16 SCC 125 , through Gavai J., observed as under: “27. It can thus be seen that this Court has held that once the execution of a cheque is admitted, Section 139 of the N.I. Act mandates a presumption that the cheque was for the discharge of any debt or other liability. It has, however, been held that the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It has further been held that to rebut the presumption, it is open for the accused to rely on evidence led by him, or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. It has been held that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.” 7. The position of law, as is evident from the above, is clear. 21. Thus, the Court has to raise the presumption that the cheque was issued in discharge of the liability for consideration, and the burden would shift upon the accused to rebut the presumption. 22. The evidence of the accused did not rebut the presumption; rather, the statement of Anjana Thakur (DW1) proved that the complainant had paid Rs. 1,50,000/- on behalf of the accused. 23. The complainant stated that the cheque was dishonoured with an endorsement ‘funds insufficient’. This is duly established by the memo (Ex.AW2/B). Amar Singh (AW2) stated that the cheque was received for presentation; however, the holder of the account had no money. Hence, the cheque was dishonoured. He was not cross-examined at all, which means that his testimony is not disputed by the accused. Hence, in these circumstances, the complainant’s version that the cheque was dishonoured due to insufficient funds has to be accepted as correct. 24. The complainant stated that he had issued a notice (Ex.AW1/A) to the accused. This notice was sent to the same address at which the accused was served. Hence, in these circumstances, the complainant’s version that the cheque was dishonoured due to insufficient funds has to be accepted as correct. 24. The complainant stated that he had issued a notice (Ex.AW1/A) to the accused. This notice was sent to the same address at which the accused was served. The accused also furnished the same address in the bail bonds furnished before the learned Trial Court, the notice of accusation and the statement recorded under Section 313 of Cr.P.C. Thus, the notice was sent to the correct address and is deemed to be served as per Section 27 of the General Clauses Act, and the burden is upon the accused to rebut this presumption. The accused did not lead any evidence to rebut the presumption, and the findings recorded by the learned Trial Court that the notice was not served upon the accused cannot be sustained. 25. In any case, it was laid down in C.C. Allavi Haji vs. Pala Pelly Mohd. 2007(6) SCC 555 , that the person who claims that he had not received the notice has to pay the amount within 15 days from the date of the receipt of the summons from the Court, and in case of failure to do so, he cannot take advantage of the fact that notice was not received by him. It was observed: “It is also to be borne in mind that the requirement of giving notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of the complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran’s case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice, a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from the legal consequences of Section 138 of the Act.” (Emphasis supplied) 26. Therefore, it was duly proved on record that the accused had issued a cheque to discharge his legal liability, which was dishonoured with an endorsement ‘funds insufficient’, and the accused failed to pay the money despite a deemed receipt of the notice. Learned Trial Court ignored the evidence of Anjana Thakur (DW1) and the presumption contained in Section 138 of the NI Act. Therefore, the judgment passed by the learned Trial Court cannot be sustained. 27. In view of the above, the present appeal is allowed and the judgment dated 28.2.2012, passed by the learned Chief Judicial Magistrate, Bilaspur, HP, is set aside. The accused is convicted of the commission of an offence punishable under Section 138 of the NI Act. 28. Let the accused be produced before the Court for hearing him on the quantum of sentence on 17th November, 2025.