The Supreme Court observed that the presumption available under Section 139 of NI Act can only be rebutted after adducing evidence.
The judgement came out in a case titled as SHIV KUMAR ALIAS JAWAHAR SARAF vs. RAMAVTAR AGARWAL
CASE BACKGROUND
In the present case, A compliant u/s 138 NI Act was filed against the appeallant. And Trial Court taking into consideration materials on the record took cognizance of offence and registered a criminal complaint case.
Appellant filed a Criminal Revision against the said order before the District Judge, which was dismissed by the District Judge. Thereafter Appellant Filed a petition in High Court for quashing the order passed by Sessions Judge.
The High Court dismissed the Petition and held that:
The presumption available under Section 139 of NI Act has to be rebutted and that rebuttal can only be done after adducing evidence. This, by itself clearly reflects that the rebuttal presumption cannot be looked into at the stage of the Court taking cognizance of the offence and registering the case all that Court would have to see is whether there is a prima facie case made out meeting the conditions precedent as envisaged under Section 138 of NI Act, which in the instant case, in the opinion of this Court, the Respondent has in fact been able to establish and fulfill all such ingredients.
As has been stated in the preceding paragraphs since there is a presumption to be drawn of there being a debt or liability in part or in whole of the drawer to the holder of the instrument, the Court below cannot be said to have faulted upon in taking cognizance and in registering the offence. Since it is a rebuttal presumption and all the contentions and averments made by the counsel for the Petitioner being his defence, it would be open for him to raise all these grounds at the stage of leading evidence including the defence of existence of legally enforceable debt or liability. However, there can be no doubt that at the time of filing of complaint there was always initial presumption which would be in favour of the complainant.”
While Dismissing the appeal, Supreme Court Observed:
We are in full agreement with the opinion of the High Court expressed in the above noted paragraphs which has been referred by learned counsel for the appellant. It is well settled that the rebuttal can be made with reference to the evidence of the prosecution as well as of defence.
The judgement has been delivered by Justice Ashok Bhushan and Justice K.M. JOSEPH on 19-02-2020.
Read Judgement Here:
