The Supreme Court has held that Statement of accused u/s 313 Cr.P.C is not a substantive evidence to rebut presumption u/s 139 NI Act.
The order came out in a case titled as Sumeti Vij Versus M/s Paramount Tech Fab Industries.
In the present Case, accused approached the complainant and expressed her desire to purchase non-woven fabric from the complainant. On the basis of order placed by the accused, non-woven fabric was sold vide invoice No.120 dated 01st October, 2010 and invoice No.135 dated 16th October, 2010 amounting to Rs.5,07,062/- and Rs.5,10,000/-and in lieu thereof, two cheques were issued by the accused in the name of the complainant .The cheques on presentation were returned with a note of “insufficient funds” in the account of the accused, thereafter two complaints were filed by the complainant u/s 138 of the Act against accused.
The complainant in order to prove its case has examined three witnesses and placed reliance on the documentary evidence. On conclusion of recording of complainant’s evidence, the statement of the appellant-accused was recorded under section 313 Cr.PC by the learned trial Judge wherein accused claimed innocence and pleaded false implication in the case however, did not lead any evidence in defence.
On perusal of the evidence on record, trial court returned a finding that the complainant failed to establish that the material/goods were delivered to the appellant in lieu of which, the cheques were issued, and in the absence of burden being discharged by the complainant, the onus to disprove or rebut the presumption could not be shifted to the appellant as referred under Section 139 of the Act. Accordingly, trial court acquitted the accused.
Decision of High Court
The High Court held that the primary burden was discharged by the complainant that the cheques were issued by the appellant in lieu of the material supplied, and documentary evidence duly placed on record to substantiate the claim, and it was for the accused to discharge her burden to rebut in defence as required under Section 139 of the Act. In the instant case, the appellant only recorded her statement under Section 313 of the Code. However, no evidence was recorded to disprove or rebut the presumption in defence and consequently, awarded appropriate punishment of fine/sentence and the same was challenged before the Supreme Court.
Decision of Supreme Court
The Apex Court while examining scope of Section 139, referred Rohitbhai Jivanlal Patel v. State of Gujarat in which it was held:
The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.
The Court held that, in the case at hand, complainant was able to prove that the accused placed the order for purchasing non-woven fabric and in lieu thereof, the cheques in favour of the complainant were issued by accused in order to discharge her liability and the same was dishonoured. Thereafter, two separate legal notices were served by the complainant which were neither replied by the accused nor any payment was made. Thereafter, two separate complaints were filed by the complainant under Section 138 of the Act against the accused.
Thereafter, complainant exhibited all these documents in support of his complaints and recorded the statement of three witnesses in support thereof. Thereafter, the accused recorded her statement u/s 313 of the Code but failed to record evidence to disprove or rebut the presumption in support of her defence available u/s 139 of the Act. The statement of the accused recorded u/s 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration.
Accordingly held that, In the given circumstances, the High Court, in our view, has not committed any error in recording the finding of guilt of the appellant and convicting her for an offence being committed under Section 138 of the Act under its impugned judgment, which in our considered view, needs no further interference. Consequently, the appeals are without any substance, and are accordingly dismissed.
Read Order here: