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  • An observation from Justice Deepak Roshan of the Jharkhand high court was that "While section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under section 139is a device to prevent undue delay in the course of litigation. 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 now 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 doubt about the existence of a legally enforceable debt or liability, the prosecution fails."(livelaw.in, n.d.)
  • The case was a revision application of Mohammad Sayeed Versus the State of Jharkhand and Anr.
  • This revision application was directed against the judgment passed by the learned Principal Sessions Judge, East Singhbhum at Jamshedpur in Criminal Appeal No.292 of 2012; whereby the judgment of conviction and order of sentence, passed by the learned S.D.J.M, Jamshedpur; whereby the petitioner was convicted for the offence under Section 138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for 1 year and to pay a sum of Rs.9 lakhs to the complainant by way of compensation, had been affirmed.
  • The case details were that, in order to help the petitioner the opposite party lent a loan of rupees 7,20,000 out of acquaintance.
  • The accused promised to pay the said amount within 2 years from the date of issue. However, he failed to do so.
  • The cheques issued by the petitioner were dishonoured both times.
  • Now the complainant wants to utilize the said cheque in an illegal manner and the petitioner disowned to have received any amount as claimed in the legal notice. Accordingly, the complaint was filed.
  • Court relied on the Apex Court judgment in T. Vasanthakumar V. Vijaykumari wherein it was held that since the cheque as well as the signature has beenaccepted by the accused-respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability.
  • After observing the facts of the case, the court concluded that all the requirements to of section 138 of the N.I Act are fulfilled by the complainant.
  • The court reiterated that under section 138 of the negotiable instrument act the standard proof to rebut the presumption in favour of the cheque holder is that of preponderance of probabilities
  • Therefore, if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution has failed.
     
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