Cheque Dishonour Accused Must Take ‘Probable Defence’ To Rebut Adverse Presumption U/S 139 NI Act: Karnataka High Court Reiterates
Case: R Pramod v Gangadharaiah
Coram: Justice S Rachaiah
Case No.: CRIMINAL APPEAL NO. 2000 OF 2022
Court Observation: “If the defence taken by the accused is not acceptable obviously the presumption prevails upon the failure of the defence.”
The presumption under Section 139 of the N.I Act provides that Court shall presume that the holder of a cheque received the cheque of the nature referred to in Section 138 of the N.I Act for the discharge, in whole or in part of any debt or other liability. The burden lies on the accused to rebut the presumption. The probable defence raised by the accused would be a matter to be decided on the facts of each case and the circumstances that existed.
“It is settled principles of law that if the notice is issued to the correct address of the accused and if the notice is not able to serve due to the reasons assigned in the said shara, it is deemed that the notice is served to the accused in terms of Section 27 of General Clause Act read with Section 114 of the Indian Evidence Act. Moreover, the accused has not disputed that he was not residing in the said address.”
“In the cross-examination, a specific question was put to DW.1 that whether it is possible to say when five cheques were issued to Sri.Ramakrishnaiah who is the father of the complainant, he did not answer the same.”
“On considering the proposition of law, the stand taken by the accused in his evidence and also in the cross-examination of PW.1 that there was seven cheques issued to the father of the complainant as a security for transactions having been made between them appeared to be untrue and not proved.”
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Keywords
Cheque Dishonour Accused, Karnataka High Court
