Cheque Dishonour Accused Must Raise ‘Probable Defence’ To Rebut Presumption U/S 139 NI Act & Meet The ‘Test Of Proportionality’
Case: Subrata Bose v. Mithu Ghosh
Coram: Justice Tirthankar Ghosh
Case No.: CRA 658 of 2018
Court Observation: “Although it is permitted in a case of such nature to raise a probable defence from the available materials in the cross-examination of the prosecution witness only, but the nature of the cross-examination and the probable defence raised by the accused do not qualify as a rebuttal to the provisions under Section 139 of the N.I. Act…The test of proportionality in such cases must guide the determination of the issue of rebuttal. As such what is required for the accused to do in such case is to raise a probable defence”
“The aforesaid observations of the appellate Court are beyond the scope of appreciating evidence in respect of provisions relating to adjudication of offence under Section 138 of the N.I. Act. Section 139 of the N.I. Act is a statutory presumption which carries with it an expression “unless the contrary is proved”. The test of proportionality in such cases must guide the determination of the issue of rebuttal. As such what is required for the accused to do in such case is to raise a probable defence. It cannot be a probable defence that the complainant has no capacity to pay the money until and unless an initial defence is set up by a reply notice or the accused examines his witnesses and relies upon documentary evidence.”
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Keywords
Cheque Dishonour Accused
