SC: Proven financial incapacity while issuing cheque is a probable defence

The Hon’ble Supreme Court, on 9thApril 2019, in the matter of Basalingappa v. Mudibasappa observed that if it is successfully proven by evidence that the complainant did not have the financial capacity while issuing the cheque, then it can be used as a probable defence by a person accused of committing an offence u/s 138 of the Negotiable Instruments Act, 1881.

The Hon’ble Supreme Court observed that: 

(Para 23)

(i) Once the execution of cheque is admitted Section 139 of the Act mandates a 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.

If it is successfully proven by evidence that the complainant did not have financial capacity while issuing the cheque, then it can be used as a probable defence by a person accused of committing an offence u/s 138 of the Negotiable Instruments Act, 1881. (This inference has been drawn on the basis of Para 29)

Copy of judgement: Judgement_09-Apr-2019

-Tushar Kaushik

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