Hon’ble supreme court in APS FOREX SERVICES PVT LTD V/S SHAKTI INTERNATIONAL FASHION LINKERS & ORS has observed that burden cannot be shifted upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139
The Hon’be apex court trhough a division bench of Hon’ble Judges: Ashok Bhushan and M R Shah passed the order.
Facts Note:
Negotiable Instruments Act, 1881, Sections 139 and 138-Appeal against acquittal-Accused took plea that cheque was given by way of security-Courts below shifted burden to prove debt upon complainant.
Held – Accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 that there exists a legally enforceable debt or liability-Story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured-Both, Courts, have committed error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139.