Whether court can rely on evidence of victim if her evidence is in variance with FIR?

Once, the evidence of the prosecutrix, in given facts of the present case, is examined, this court does not find that she has tried to improve her case to such an extent to make it suspicious.

Learned senior counsel appearing for the appellant-Surinder

Singh @ Shinda was empathic that there is lot of improvements in the  statement of the prosecutrix and therefore, the case of the prosecution should be rejected by the Court. It may be noted here that slight change in the facts or alleged improvements are bound to happen being natural. One cannot be expected to have eidetic/photographic memory. Natural variation do happen and such depositions are considered and relied upon by the courts after its careful analysis.

Still further, it is well settled that FIR is not expected to be an

encyclopedia of the entire case of the prosecution. An FIR is a mere first

information sent to the prosecuting agency for setting criminal law in

motion. In these circumstances, it is wrong to expect that in the FIR, complete detail of all the incidents must be disclosed. An FIR is not expected to contain the proposed evidence to be produced by the prosecution.

IN THE HIGH COURT OF PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH

(1) CRA-S-644-SB-2017 (O&M)

Date of decision: 02nd July, 2020

Surinder Singh @ Shinda Vs  Union Territory, Chandigarh

CORAM:  MR. JUSTICE ANIL KSHETARPAL

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Whether court can draw presumption that cheque was issued legally enforceable debt or liability if accused admits his signature on cheque?

Coming back to the facts in the present case and considering the fact that the 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 of the N.I. Act that there exists a legally enforceable debt or liability. of course such presumption is rebuttable in nature. However, to rebut the presumption the Accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, no such evidence has been led by the Accused. The 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. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the N.I. Act. It appears that both, the Learned Trial Court as well as the High Court, have committed error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption Under Section 139 of N.I. Act. As observed above, Section 139 of the Act is an example of reverse onus Clause and therefore once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter it is for the Accused to rebut such presumption by leading evidence.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 271 and 272 of 2020

Decided On: 14.02.2020

APS Forex Services Pvt. Ltd. Vs.  Shakti International Fashion Linkers and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and M.R. Shah, JJ.

Citation: MANU/SC/0179/2020

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How reverse onus clause is applicable to proceeding U/ S 138 of Negotiable instrument Act?

Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. WhileSection 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the  test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1020 of 2010 (Arising out of SLP (Crl.) No. 407 of 2006)

Decided On: 07.05.2010

Appellants: Rangappa
Vs.
Respondent: Sri Mohan

Hon'ble Judges/Coram:
K.G. Balakrishnan, C.J., P. Sathasivam and J.M. Panchal, JJ.

Citation:AIR 2010 SC 1898

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