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Criminal Appeal No. 362 of 2022 (Arising out of SLP (Crl.) No. 1963 of 2019)

Decided On: 07.03.2022

Appellants: Tedhi Singh Vs. Respondent: Narayan Dass Mahant

Hon'ble Judges/Coram:
K.M. Joseph and Hrishikesh Roy


K.M. Joseph, J.

1. Leave granted.

2. The Appellant calls in question the judgment of the High Court by which it dismissed the Criminal Revision No. 129 of 2018 filed Under Section 397 of the Code of Criminal Procedure, 1898 (for short 'Cr.P.C.) against the order of the Sessions Judge by which the Court in turn affirmed the order passed by the Chief Judicial Magistrate. The Chief Judicial Magistrate found the Appellant guilty of having committed the offence Under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act.'). The Appellant stands sentenced to simple imprisonment for a period of one year. Further, the Appellant is called upon to pay a compensation of a sum of Rs. 7 Lakhs.

3. The complaint of the Respondent was based on the allegation that in the month of August, 2011 the Appellant was in urgent need of money and out of friendship he gave a sum of Rs. 7 Lakhs and the cheque given by the Appellant was dishonored. In the trial, following the complaint the Appellant examined DW-1 to DW-4. They are Officers of four Banks. This was done by the Appellant in an attempt at putting up what can be described in the words of the learned Counsel for the Appellant 'a probable defence'. It was an attempt by the Appellant to show that the version of the complainant that he had the financial wherewithal to advance a loan of Rs. 7 Lakhs was not to be accepted. This is the matter which has been agitated by Ms. Sangeeta Bharti, learned Counsel for the Appellant. She would, in fact, complain that in the impugned judgment, the High Court has observed that it is not known as to what is the purpose for which DW-1 to DW-4 have been examined. It is Appellant's case that the finding would clearly help the Appellant advance the contention that this is a case where the High Court as also the two Courts have not appreciated the law which is laid down in regard to the effect of a 'probable defence'. She drew our attention to the judgment of this Court in Basalingapa v. Mudibasappa reported in   MANU/SC/0502/2019 : (2019) 5 SCC 418. This Court, inter alia has held as follow:

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 following manner:

25.1. Once the execution of 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 submitt........