BASALINGAPPA versus MUDIBASAPPA

Citation: [2019] 6 S.C.R. 555 · Decided: 09-04-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Appeal(s) allowed

Cited by 7 judgment(s) · cites 7 · see the full citation network in Lexace

Judgment (excerpt)

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     BASALINGAPPA
      v.
                 MUDIBASAPPA
     (Criminal Appeal No. 636 of 2019)
        APRIL 09, 2019
    [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Negotiable Instruments Act, 1981 – ss.118(a), 138 and 139 –
Complainant case was that he gave a hand loan of Rs.6,00,000/- to
the accused – Accused gave a cheque dated 27.02.2012 for
Rs.6,00,000/- but the same was returned by the bank with the
endorsement ‘Funds Insufficient’ on 01.03.2012 – Complaint was
filed – Trial court acquitted the accused for the offence u/s. 138 of
the Act on basis that complainant failed to prove his financial
capacity – However, the High Court set aside the judgment of the
trial court and convicted the accused for the offence u/s.138 –
Accused questioned financial capacity of the complainant alleging
that complainant had retired in the year 1997 and had encashed
his retirement benefits of Rs.8,00,000/- and made a payment of
Rs.4,50,000/- for an agreement to sale in the year 2010 – Besides
that, during the period from 2009 to Nov, 2011 complainant made
several other payments to different persons – On appeal, held:
Complainant admitted that he had received monetary benefit of
Rs.8,00,000/-, which was encashed – Complainant also admitted
that he made payment of Rs.4,50,000/- – During the cross-
examination of the complainant, he did not give satisfactory reply
regarding his financial capacity to pay Rs.6,00,000/- to the accused
– Evidence on record indicate that  within two years, amount of
Rs.18,00,000/- was given out by the complainant to different persons
– It was incumbent on the complainant to have explained his financial
capacity – Thus, evidence on record, was a probable defence on
behalf of the accused, which shifted the burden on the complainant
to prove his financial capacity and other facts – The findings of the
trial court that complainant failed to prove his financial capacity
was based on evidence led by the defence – Thus, observations of
the High Court unsustainable – Judgment of the trial Court restored.
[2019] 6 S.C.R. 555
555
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SUPREME COURT REPORTS
[2019] 6 S.C.R.
Allowing the appeal, the Court
HELD:   1.  After having noticed the ratio laid down by the
Supreme Court in various cases on Sections 118(a) and 139, this
Court now summarise the principles enumerated by the Supreme
Court in following manner:-
(i) Once the execution of cheque is admitted Section 139
of the Act mandate presumption that the cheque was for the
discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the probable
defence. The standard of proof for rebutting the presumption is
that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to
rely on evidence led by him or accused can also rely on the
materials submitted by the complainant in order to raise a
probable defence. Inference of preponderance of probabilities
can be drawn not only from the materials brought on record by
the parties but also by reference to the circumstances upon which
they rely.
(iv) That it is not necessary for the accused to come in the
witness box in support of his defence, Section 139 imposed an
evidentiary burden and not a persuasive burden.
(v)  It is not necessary for the accused to come in the witness
box to support his defence. [Para 23][573-B-F]
2.  Applying the preposition of law as noted above, in facts
of the present case, it is clear that signature on cheque having
been admitted, a presumption shall be raised under Section 139
that cheque was issued in discharge of debt or liability.  The
question to be looked into is as to whether any probable defence
was raised by the accused.  In cross-examination of the PW1,
when the specific question was put that cheque was issued in
relation to loan of Rs.25,000/- taken by the accused, the PW1
said that he does not remember.  PW1 in his evidence admitted
that he retired in 1997 on which date he received monetary benefit
of Rs. 8 lakhs, which was encashed by the complainant.  It was
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also brought in the evidence that in the year 2010, the complainant
entered into a sale agreement for which he paid an amount of
Rs.4,50,000/- to one ‘BG’ towards sale consideration.  Payment
of Rs.4,50,000/- being admitted in the year 2010 and further
payment of loan of Rs.50,000/- with regard to which complaint
No.119 of 2012 was filed by the complainan

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