Legally Enforceable Debt - Is not a matter of presumption u/S.139 - Every accused presumed to be innocent until proven to be guilty - Acquittal upheld.(overruled by AIR 2010 SC 1898)

Citation

2008 (5) CTC 527 (Mad)

IN THE HIGH COURT OF MADRAS

K. Mohan Ram, J.

Ct. Rev. Case No. 267 of 2008 and M.P. No.2 of 2008.

October 14, 2008

Kalavally

Vs

Parthasarathy

Dishonour of Cheque - Presumption u/s 139-Rebuttal of Burden of proof on accused to prove non-existence of consideration-Standard of proof-Inference of preponderance of probabilities Can be drawn not only from materials brought on record by parties, but also by reference to draumstances he relies.

Dishonour of Cheque-5.139 merely raises presumption as to instrument supported by consideration-Existence of legally recoverable debt not a matter of presumption u/s 139.

Negotiable Instruments Act, 1881 (26 of 1881), Sections 118 & 139-Presumption under Presumption in favour of payee of cheque can be drawn once signature in such cheque is admitted by Drawer of cheque But presumption is that cheque was issued by Drawer and is supported by consideration- There can be no presumption on existence of legally recoverable debt Drawer of cheque has burden to prove non existence of consideration in such case and it can be either direct or by bringing on record preponderance of probabilities by reference to circumstances upon which he relies Court may not insist upon direct evidence to prove non existence of consideration as negative evidence is not possible-Drawer of cheque disproved existence of consideration by letting in circumstantial evidence and by examining witnesses besides examining herself to prove that Payee of cheque did not have wherewithal to have lent any sum to drawer of cheque-Conviction set aside.

Complamans prosecured accused for dishonour of cheque Accused admitted her signature in the cheque but pleaded that the complainant used to help her in her bunners and that she had reposed faith in him in view of the fact