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Section 313 CrPC Statement By Accused Is Not A Substantive Evidence To Rebut Presumption Under Section 139 NI Act: Supreme Court

LIVELAW NEWS NETWORK
9 March 2021 12:10 PM GMT
Section 313 CrPC Statement By Accused Is Not A Substantive Evidence To Rebut Presumption Under Section 139 NI Act: Supreme Court
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The statement of the accused recorded under Section 313 of the Code of Criminal Procedure is not a substantive evidence of defence to rebut the presumption under Section 139 of the Negotiable Instruments Act that the cheques were issued for consideration.In this case, the bench comprising Justices Indu Malhotra and Ajay Rastogi was considering an appeal against the judgment of...

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The statement of the accused recorded under Section 313 of the Code of Criminal Procedure is not a substantive evidence of defence to rebut the presumption under Section 139 of the Negotiable Instruments Act that the cheques were issued for consideration.

In this case, the bench comprising Justices Indu Malhotra and Ajay Rastogi was considering an appeal against the judgment of the High Court of Himachal Pradesh holding the accused guilty of offence under Section 138 of the Negotiable Instruments Act.

The court noted that the accused has only recorded her statement under Section 313 of the Code, and has not adduced any evidence to rebut the presumption that the cheques were issued for consideration. On the other hand, the complaints were filed by placing all documentary evidence in support of the complaint duly exhibited, and three witnesses in support thereof were examined, and was able to establish and discharge the burden of proof.

The court further observed that there is a mandate of presumption of consideration in terms of the provisions of the Act and the onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the Act.

"It is well settled that the proceedings under Section 138 of the Act are quasi­criminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the Act.. Likewise, under Section 139 of the Act, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced by the accused which on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved.", the court said.

When the complainant exhibited all these documents in support of his complaints and recorded the statement of three witnesses in support thereof, the accused has recorded her statement under Section 313 of the Code, but failed to record evidence to disprove or rebut the presumption in support of her defence available under Section 139 of the Act, the bench observed.

"The statement of the accused recorded under Section 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", the court said while dismissing the appeal.


Case: Sumeti Vij Vs. Paramount Tech Fab Industries [CrA 292 OF 2021]
Coram: Justices Indu Malhotra and Ajay Rastogi
Citaiton: LL 2021 SC 149


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