Rebutting the presumption against accused in Section 138, N I Act #indianlaws

Delhi High Court in the matter of Mukesh Kumar Vs. State Crl. L P 555/2017 decided on 2^nd Feburary, 2017 held the fact that the cheque has been signed by the accused is not denied by the accused, itself raises a presumption against the accused under Section 139 of Negotiable Instruments Act that the cheque had been issued in respect of an outstanding debt or for consideration.  The presumption under Section 139 of Negotiable Instruments Act is a rebuttable presumption, and the standard of proof required to rebut the said presumption is on preponderance of probabilities. On the other hand, the standard of proof required to establish the guilt of an accused in a criminal trial is, beyond reasonable doubt.

In the present case, the initial burden was on the accused to probabilise his defence. It was for the accused to establish upon preponderance of probabilities, his defence that he had taken a loan in respect whereof the cheque had been issued. However, the accused did not produce the so-called person from whom he had taken a loan to establish his loan transaction and also to establish that he had delivered the cheque in question to Manoj Kumar.

No document evidencing the alleged loan transaction was produced by the accused. He did not produce his own accounts / ITR to show that he had reflected the so called loan taken in his books. The statement of the accused is as vague, as could be. He gives no particulars of the amount of loan taken; the date of the said loan transaction; the manner in which it was taken – i.e. whether in cash or through cheque; the dates(s) of its repayment, and; the manner of its repayment i.e. whether in cash or through cheque. Though the accused claimed that he had repaid the loan, no document evidencing repayment of the loan was produced.