Accused has the right to demonstrate that the complainant in a particular case did not have the capacity

Headnotes

Negotiable Instruments Act, 1881 ; Sections 138,139 - At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity - However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents, by pointing to the materials produced by the complainant himself, or through the cross examination of the witnesses of the complainant. (Para 9)

Negotiable Instruments Act, 1881 ; Sections 138,139 - Theory of 'probable defence' - he accused is not expected to discharge an unduly high standard of proof - All which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist - It becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. [Referred to Basalingapa Vs. Mudibasappa (2019) 5 SCC 418] (Para 7, 9)

Constitution of India, 1950 ; Article 136 -Supreme Court exercising power under Article 136 of the Constitution may not refuse to interfere in a case where three Courts have gone completely wrong. The  jurisdiction generated in an appeal under Article 136 is undoubtedly rare and extraordinary. Article 136 of the Constitution only confers a right to obtain special leave in rare and extraordinary cases. (Para 11)

Appeal against concurrent conviction in a cheque bounce case - Partly allowed - Upheld the conviction - Directed that sentence of imprisonment of one year vacated - Accused appellant sentenced to fine of Rs.5,000/- which he will deposit within a period of one month in the Trial Court.

Case details

Case name | Citation : Tedhi Singh vs Narayan Dass Mahant | 2022 LiveLaw (SC) 275 

Case no.| date : CrA 362 OF 2022 | 7 March 2022

Coram: Justices KM Joseph and Hrishikesh Roy

Counsel: Adv Sangeeta Bharti for appellant, Adv Ajay Marwah for respondent