Evidence Adduced To Raise Presumption U/s 139 NI Act Can't Be Discarded Merely On The Ground That There Is No Such Averment In Complaint: SC [Read Judgment]

The Supreme Court has observed that evidence adduced by the Complainant in a Cheque bounce case (under Section 138 Negotiable Instruments Act) to raise statutory presumption under Section 139 cannot be discarded merely on the ground that there were no such averments in the complaint.

In M/S Shree Daneshwari Traders vs. Sanjay Jain, both the Trial Court and the High Court disbelieved the evidence of the complainant on the ground that there are no averments in the complaint that the commodities were sold for cash and that the rice bags were sold on credit and the cheques were issued for the goods sold on credit. The evidence was adduced in this case to the effect that the accused sometimes used to purchase rice bags on credit and sometimes used to purchase rice bags on payment of cash. The High Court, while upholding acquittal, held that it was incumbent upon the complainant to have explained in the complaint that the cash payments made by the respondent were related to other commodities and the cheques were made for payment of rice bags.

In appeal filed by the complainant, the bench comprising Justice R. Banumathi and Justice AS Bopanna observed that with the examination of complainant, the statutory presumption under Section 139 of the Act arises that the cheques were issued by the accused for the discharge of any debt or other liability in whole or in part. The courts below disbelieved the evidence of the complainant on the ground that there are no averments in the complaint that the commodities were sold for cash and that the rice bags were sold on credit and the cheques were issued for the goods sold on credit, the bench said. It further observed:

"Though the complaint contains no specific averments that the cheques were issued for the purchase made on credit, in his evidence, PW-1 clearly stated that the cheques were issued for the commodities purchased on credit. The courts below erred in brushing aside the evidence of PW-1 on the ground that there were no averments in the complaint as to the purchases made by cash and purchase. The courts below also erred in not raising the statutory presumption under Section 139 of the Act that the complainant received the cheques to discharge the debt or other liability in whole or in part." 

While setting aside the concurrent findings of the Trial Court and the High Court, the bench convicted the accused and observed:

The oral and the documentary evidence adduced by the complainant are sufficient to prove that it was a legally enforceable debt and that the cheques were issued to discharge the legally enforceable debt. With the evidence adduced by the complainant, the courts below ought to have raised the presumption under Section 139 of the Act. The evidence adduced by the respondent-accused is not sufficient to rebut the presumption raised under Section 139 of the Act. The defence of the respondent that though he made payment for the commodities/rice bags, the blank cheques were not returned by the appellant-complainant is quite unbelievable and unacceptable.

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