Presumption U/S 139 NI Act Akin To General Rule Of Evidence Incorporated In S. 106 Evidence Act: Jharkhand High Court

The Jharkhand High Court has observed that the presumption under Section 139 of the NI Act is akin to the general rule of evidence incorporated in Section 106 of the Evidence Act.

The Bench of Justice Shree Chandrashekhar further said that the accused has the right to show that there is a possibility that the case pleaded against him is not correct. However, this stage would come only when a prima facie case is established by the complainant.

It may be noted that Section 139 NI Act states that unless the contrary is proved, it has to be presumed that the holder of the cheque received the cheque for discharge of any debt or other liability, in whole or in part.

Generally, where the drawer of a cheque does not dispute his signature over the cheque and there is no suspicious circumstance in the case, the presumption under section 139 of the NI Act is raised against the drawer of the cheque.

On the other hand, Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is on him

This provision is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts that are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.

Now, on a combined reading of both the sections, it comes out that once a presumption is drawn against the drawer of the cheque, the onus lies upon him to show through a preponderance of probability that no presumption could be raised against him merely on the basis of the signature of the accused on the cheque.

The case in brief

In the instant case, a presumption under section 139 of the NI Act was drawn against the petitioner by the trial Magistrate and he was held guilty under section 138 of the NI Act and was sentenced to SI of one year with a direction to pay compensation of Rs. 2 lacs to the complainant.

In appeal, the order was set aside as the Court held that the accused was able to rebut the presumption under section 139 of the NI Act and therefore the complainant was required to prove the case beyond all reasonable doubt.

The appellate court had observed that the name, date, etc. on the cheque which bears the signature of the Drawer were not filled up by him and he had all along taken a stand that the cheque in question was issued by him as security for the purchase of land.

In view of this, while refusing to interfere, the Court observed thus:

"The presumption under section 139 of NI Act is akin to general rule of evidence incorporated in section 106 of the Evidence Act.This provision of the Evidence Act has been discussed elaborately by the Hon'ble Supreme Court in "Shambhu Nath Mehra v. The State of Ajmer" to hold that the reverse presumption against the accused cannot be raised automatically and it is burden of the prosecution to establish a prima facie case for raising a presumption under section 106 of the Indian Evidence Act, 1872."

Consequently, finding that the case pleaded by the complainant is surrounded by several suspicious circumstances, the Court held that the appellate Court had rightly held that the complainant was not able to establish a prima facie case so as to raise a presumption under section 138 of NI Act against the drawer of the cheque.

With this, the criminal revision plea was dismissed.

Case title - Hazari Prasad v. The State of Jharkhand and another

Citation: 2022 LiveLaw (Jha) 60

Click here To Read/Download order