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2009 DIGILAW 568 (GAU)

Bogan Oza v. Lalitya Kr. Das

2009-08-13

T.NANDAKUMAR SINGH

body2009
JUDGMENT T. Nandakumar Singh, J. 1. By this appeal, the appellant-complainant is assailing the judgment and order dated 7.9.2006 passed by the learned Sub-Divisional Judicial Magistrate (M), Dhakuakhana passed in Case No. C.R. 306/2005, wherein and whereunder, the learned Sub-Divisional Judicial Magistrate (M) held that the appellant-complainant had failed to prove that the respondent-opposite party had committed the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ' the NIA, 1881'). 2. Heard Mr. H. Sarma, learned Counsel appearing for the appellant-complainant as well as Mr. P.J. Saikia, learned Counsel for the respondent-opposite party. 3. The factual Panorama of the appellant-complainant's case in his complaint dated 19.10.2005 being Case No. C.R. 306/2005 against the respondent-opposite party under Section 138 of the NIA, 1881, is briefly re-capitulated. The appellant-complainant Sri Bogan Oza sold his plot of land measuring four Kathas covered by Dag No. 1152 of Patta No. 110 of Dhakuakhana Mouza at Konwar Ghahi Gaon map for Rs. 2,00,000/- to the respondent-opposite party Sri Lalitya Das under the sale agreement dated 23.11.2002 between the appellant-complainant and the respondent-opposite party. Pursuant to the said sale agreement, the respondent-opposite party had paid an amount of Rs. 1,00,000/- to the appellant-complainant on 23.11.2002 under a written agreement between the parties that the remaining amount of Rs. 1,00,000/- will be paid by the respondent-opposite party on the execution of the sale deed. Subsequently, the appellant-complainant received a sum of Rs. 25,000/- vide bearer cheque and Rs. 11,000/- in cash from the respondent-opposite party. As regards the remaining amount of Rs. 64,000/-, the respondent-opposite party issued a post-dated cheque bearing No. 767451 on the date of registration of the sale deed i.e. on 7.7.2005, to be drawn at the Assam Co-operative Apex Bank, Dhakuakhana Branch on 11.7.2005. It is also the further case of the appellant-complainant that when he deposited the said post dated cheque at UBI, Dhakuakhana in his Account on 20.7.2005, the cheque was returned on 25.7.2005 with the Return Memo of Assam Co-operative Apex Bank, Dhakuakhana with reason No. II that "payment stopped by the drawer". Thereafter, the appellant-complainant approached the respondent-opposite party and went to the Bank on 2.9.2005 for depositing the said cheque and again the cheque was returned with the Return Memo for the same reason i.e. "payment stopped by the drawer". Thereafter, the appellant-complainant approached the respondent-opposite party and went to the Bank on 2.9.2005 for depositing the said cheque and again the cheque was returned with the Return Memo for the same reason i.e. "payment stopped by the drawer". The appellant-complainant also served a Pleader's Notice dated 12.9.2005 to the respondent-opposite party but the respondent-opposite party did not respond in spite of receiving the said notice. Hence, the appellant-complainant filed a case being C.R. Case No. 306/2005 under Section 138 of the NIA, 1881 against the respondent-opposite party Lalitya Das and one Kamal Deka who was the then L. D. Assistant in the Office of the Sub-Registrar, Dhakuakhana in the Court of Sub-Divisional Judicial Magistrate (M), Dhakuakhana, Lakhimpur. 4. The case of the respondent-opposite party as appeared from his statement under Section 313, Cr.P.C. is that on 7.7.2005 another agreement, which was exhibited by the respondent-opposite party during the course of the trial, was also executed between the appellant-claimant and the respondent-opposite party mentioning that the appellant-complainant would sell and deliver possession of his remaining part of the land measuring one Katha six Lechas to the respondent-opposite party within 11.7.2005 and for that purpose a cheque of Rs. 64,000/- as a value price of the said land to be encashed on 11.7.2005 was issued by the respondent-opposite party in favour of the appellant-complainant. As the possession of the said land was not delivered to the respondent-opposite party within 11.7.2005, the respondent-opposite party instructed the concerned Bank to stop payment of the aforesaid cheque of Rs. 64,000/-. It is also the further case of the respondent-opposite party that as the appellant-complainant failed to deliver the possession of the said land to the respondent-opposite party, he had instructed the Bank to stop payment of the said cheque though he had sufficient money in his Savings Account No. 2207/13 of the Assam Co-operative Apex Bank Ltd. at Dhakuakhana Branch. 5. The appellant-complainant, in support of his case had examined four witnesses including himself, Shri Satya Saikia (P.W. No. 2) the then Branch Manager, Assam Co-operative Apex Bank, Dhakuakhana who proved the Return Memo of the Bank issued by him. P.W. No. 2 also admitted that in the Return Memo it was written/ticked/marked in column-II that "payment stopped by the drawer". The appellant-complainant, in support of his case had examined four witnesses including himself, Shri Satya Saikia (P.W. No. 2) the then Branch Manager, Assam Co-operative Apex Bank, Dhakuakhana who proved the Return Memo of the Bank issued by him. P.W. No. 2 also admitted that in the Return Memo it was written/ticked/marked in column-II that "payment stopped by the drawer". P.W. No. 1, the appellant-complainant himself deposed that for selling four Kathas of his own land to the respondent-opposite party at the consideration amount of Rs. 2.00,000/-, he had received only Rs. 1,36,000/- and for the rest amount of Rs. 64,000/- the respondent-opposite party issued the said cheque, which was dishonoured by the Bank for the reason that "payment stopped by the drawer". The appellant-complainant also exhibited the cheque and the Return Memo of the Bank which were marked as Exht. 1 and Exht. 2 respectively. 6. To the contra, the respondent-opposite party in support of his case had examined two witnesses, namely, Sri Tilok Baruah (D.W. No. 1) and Sri Jiten Tamuly, (D.W. No. 2), who were the attesting witnesses in the agreement dated 7.7.2005 executed by the parties i.e. the appellant-complainant and the respondent-opposite party that within three days from 7.7.2005 the appellant-complainant shall hand over his remaining land measuring one Katha six Lechas to the respondent-opposite party and after fulfilling that condition the appellant-complainant would be able to encash the said cheque amounting to Rs. 64,000/- issued by the respondent-opposite party. The said DWs also deposed that the appellant-complainant had failed to fulfil the condition mentioned in the said agreement dated 7.7.2005 and, accordingly, the respondent-opposite party instructed the Bank to stop the payment of the said cheque of Rs. 64,000/-. The respondent-opposite party also produced the statement of his Savings Account, which proved that the respondent-opposite party had sufficient money in his Savings Account No. 2207/ 13 of the Assam Co-operative Apex Bank, Dhakuakhana Branch. For easy reference, Sections 138 and 118 of the NIA, 1881 are quoted hereunder: 138. 64,000/-. The respondent-opposite party also produced the statement of his Savings Account, which proved that the respondent-opposite party had sufficient money in his Savings Account No. 2207/ 13 of the Assam Co-operative Apex Bank, Dhakuakhana Branch. For easy reference, Sections 138 and 118 of the NIA, 1881 are quoted hereunder: 138. Dishonour of cheque for insufficiency, etc., of funds in the account- Where any cheque drawn by a person on an account maintained by him with a Banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless: (a) the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder, in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque (within thirty days) of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation-For the purposes of this section, 'debt or other liability' means 'a legally enforceable debt or other liability'. 118. Explanation-For the purposes of this section, 'debt or other liability' means 'a legally enforceable debt or other liability'. 118. Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made: (a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date-that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance-that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer-that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements-that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course-that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 7. Section 138 of the Act makes a civil transaction to be an offence by fiction of law. Where any cheque drawn by a person on an account maintained by him with a Banker for payment of any amount of money to another person is returned by the Bank unpaid either because of the amount or money standing to the credit of that person being insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account, such person subject to the other conditions, shall be deemed to have committed an offence under the section and be punished for a term which may extend to one year or with fine which may extend to twice the amount of cheque or with both. To make the dishonour of the cheque as an offence, the aggrieved party is required to present the cheque to the Bank within a period of six months from the dale on which it was drawn or within the period of its validity, whichever is earlier and the payee or the holder in due course of the cheque makes a demand for payment of the cheque amount by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid and drawer of the such cheque fails to make the payment of the amount within 15 days of the receipt of the said notice. Section 139 refers to presumption that unless the contrary is proved, the holder received the cheque of the nature referred to under Section 138 for the discharge in whole or in part or of any debt or other liability. Section 140 restricts the defence in any prosecution under Section 138 of the Act...[Ref. Para 4 of Dalmia Cement (Bharat) Limited v. Galaxy Traders & Agencies Limited I (2001) CCR 159 (SC) : I (2001) BC 684 (SC) : (2001) 6 SCC 463 ]. 8. The Apex Court in Goa Plast (P) Ltd. v. Chico Ursula D'Souza I (2004) BC 246 (SC) : (2004) 2 SCC 235, had discussed the object and the ingredients under the provisions, in particular, Sections 138 and 139 of the NIA, 1881 and held that the object and the ingredients under the provisions, in particular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the Bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious set back. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the Bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious set back. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. (Ref. Para 26 of SCC in Goa Plast (P) Ltd. case (supra)). 9. The Apex Court also discussed the object of the provision of Section 138 of the NIA, 1881 in Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Ors. and held that "the object of the provision of Section 138 of the Act is that for proper and smooth functioning of business transaction in particular, use of cheques as negotiable instruments would primarily depend upon the integrity and honesty of the parties. It was noticed that cheques used to be issued as a device inter alia for defrauding the creditors and stalling the payments. It was also noticed in a number of decisions of this Court that dishonour of a cheque by the Bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. It was also found that the remedy available in a Civil Court is a long drawn process and unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee." (Ref. Para 34 of the SCC in Mosaraf Hossain Khan case (supra)). 10. Mr. H. Sarma, learned Counsel appearing for the appellant-complainant had strenuously contended that in the given case, five components for proving the offence under Section 138 of NIA, 1881 have been fulfilled. In support of his contention, the learned Counsel relied on the decision of the Apex Court in: (1) Electronics Trade & Technology Development Corporation (2) Modi Cements Ltd. v. Kuchil Kumar Nandi I (1999) CCR 44 (SC) : 72 (1998) DLT 179 (SC) : I (1998) BC 421 (SC) : (1998) 3 SCC 249 ; (3) K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. III (2005) BC 158 (SC) : IV (1999) CCR 63 (SC) : (1999) 7 SCC 510 ; and (4) Shamshad Begum v. B. Mohammed IV (2008) CCR 594 (SC) : (2008) 13 SCC 77 . The five components which are required to be proved in a case for the offence under Section 138 of the NIA, 1881, according to the decisions of the Apex Court in K. Bhaskaran case (supra) and Shamshad Begum case (supra) are mentioned in para-8 of the Shamshad Begum case (supra), which reads as follows: 8. As we noted in K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. III (2005) BC 158 (SC) : IV (1999) CCR 63 (SC) : (1999) 7 SCC 510 , the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The acts which are components are as follows: (1) drawing of the cheque; (2) presentation of the cheque to the Bank; (3) returning the cheque unpaid by the drawee Bank; (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; (5) failure of the drawer to make payment within 15 days of the receipt of the notice. 11. The burden of proof of the accused to disprove the presumption under Sections 138 and 118 of the NIA, 1881 are not heavy. The pre-ponderance of probability through direct or substantial evidence is sufficient enough to shift the onus to the complainant. The Apex Court in M.S. Narayana Menon @ Mani v. State of Kerala held that the standard of proof evidently is preponderance of probabilities. Inference of pre-ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. Para Nos. 23, 24 and 25 of the judgment in M.S. Narayana Menon (supra) read as follows: 23. Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. 24. A Division Bench of this Court in Bharat Barrel and Drum Manufacturing Company v. Amin Chand Payrelal (1999)3 SCC 35 , albeit in a civil case laid down the law in the following terms: "upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable, or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidences led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.' 25. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. 12. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. 12. In the present case, the respondent-opposite party successfully discharged the onus for shifting the burden of proving the ingredients for the offence under Section NIA, 1881 to the appellant-complainant inasmuch as the respondent-opposite party proved the said agreement dated 7.7.2005 by exhibiting it and examining the attesting witnesses. From the said agreement dated 7.7.2005, it is clear that the respondent-opposite party issued the cheque amounting to Rs. 64,000/- on the condition that the appellant-complainant shall deliver the possession of the aforesaid portion of the land within three days from 7.7.2005; and also that as the appellant-complainant had failed to fulfil the said condition, the respondent-opposite party had issued instruction to the Bank to stop the payment of the post dated cheque bearing No. 767451 to be drawn on 11.7.2009. Accordingly, the Bank returned the cheque with the endorsement 'payment stopped by the drawer'. Over and above, the respondent-opposite party had sufficient money in his Savings Account No. 2207/13 of the Assam Co-operative Apex Bank at Dhakuakhana Branch and as such the cheque issued by the respondent-opposite party was not returned by the Bank for insufficient money in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank. 13. Mr. P.J. Saikia, learned Counsel appearing for the respondent-opposite party, by placing heavy reliance on the decision of the Apex Court in Kumar Exports v. Sharina Carpets I, contended that the presumption under Section 118 for the offence under Section 138 of the NIA, 1881 against the respondent-opposite party is rebuttable and that there is no dishonesty on the part of the respondent-opposite party in issuing the said cheque and that the respondent-opposite party issued the instruction to the Bank to stop payment of the said cheque as the appellant-complainant had failed to fulfil the condition mentioned in the, said judgment dated 7.7.2005. The appellant in Kumar Exports case, (supra) had challenged the decision of the learned Single Judge of the Punjab and Haryana High Court, convicting the appellant under Section 138 of the NIA, 1881. The facts of the Kumar Exports case (supra) as mentioned in para Nos. 4, 5, 6, 22, 23 and 24 read as follows: 4. It is the case of the respondent that the fact that the cheques were dishonoured for insufficient funds was brought to the notice of the appellant and on the request of the appellant, the cheques were again presented for encashment in the Bank on 5.1.1995, but they were again dishonoured due to lack of funds in the account of the firm of the appellant. What is claimed by the respondent is that under the circumstances he had served statutory notice dated 19.1.1995 calling upon the appellant to make payment of the amount due but neither had the appellant replied the said notice nor made payment of amount due. The respondent, therefore, filed Criminal Complaint No. 178 of 2001 in the Court of the learned Judicial Magistrate, First Class, Karnal and prayed to convict the appellant under Section 138 of the Act. 5. On service of the summons the appellant appeared before the Court. His defence was that the bill produced by the respondent indicating sale of woollen carpets was a fictitious one and that blank cheques with his signatures were taken from him by the respondent to enable the respondent to purchase the raw material for him. According to the appellant the cheques were in the form of advance payment for supply of carpels, but the respondent had failed to deliver the goods to him. The appellant alleged that the respondent had stopped manufacturing carpets and as the cheques were not issued in discharge of any liability he was not liable to be convicted under Section 138 of the Act. 6. In order to prove his case the respondent examined himself as CW-3 and produced the cheques dishonoured at Exts. CW-2/A and CW-2/B, statutory notice at Ext. C-4, carbon copy of bill at Ext. CW-2/C, etc. He examined two witnesses to prove the presentation and dishonour of the cheques. No other witnesses was examined by him in support of his case pleaded in the complaint against the appellant. The appellant examined himself to substantiate his defence as DW 1. CW-2/A and CW-2/B, statutory notice at Ext. C-4, carbon copy of bill at Ext. CW-2/C, etc. He examined two witnesses to prove the presentation and dishonour of the cheques. No other witnesses was examined by him in support of his case pleaded in the complaint against the appellant. The appellant examined himself to substantiate his defence as DW 1. He also examined one Mr. Om Prakash, serving as a clerk in the Sales Tax Department, as DW 2, who stated before the Court that the respondent's firm had filed sales tax return for Assessment Year 1994-1995 declaring that no sale or purchase of woollen carpets had taken place and, therefore, no sales tax was deposited. The said witness also produced an affidavit filed by the respondent as Ext. D-l wherein the respondent had stated on oath that no sale or purchase of woollen carpets had taken place during Assessment Year 1994-1995. 22. The defence of the appellant was that he had agreed to purchase woollen carpets from the respondent and had issued the cheques by way of advance and that the respondent did not supply the carpets. It is the specific case of the respondent that he had sold woollen carpets to the appellant on 6.8.1994 and in discharge of the said liability the appellant had issued two cheques, which were ultimately dishonoured. In support of his case the respondent produced the carbon copy of the bill. A perusal of the bill makes it evident that there is no endorsement made by the respondent accepting the correctness of the contents of the bill. The bill is neither signed by the appellant. 23. On the contrary, the appellant examined one official from the Sales Tax Department, who positively asserted before the Court that the respondent had filed sales tax return for Assessment Year 1994-1995 indicating that no sale of woollen carpets had taken place during the said assessment year and, therefore, sales tax was not paid. The said witness also produced the affidavit sworn by the respondent indicating that during the year 1994-1995 there was no sale of woollen carpets by the respondent. 24. Though the complainant was given sufficient opportunity to cross-examine the said witness, nothing could be elicited during his cross-examination so as to create doubt about his assertion that no transaction of sale of woollen carpets was effected by the respondent during the year 1994-1995. 24. Though the complainant was given sufficient opportunity to cross-examine the said witness, nothing could be elicited during his cross-examination so as to create doubt about his assertion that no transaction of sale of woollen carpets was effected by the respondent during the year 1994-1995. Once the testimony of the official of the Sales Tax Department is accepted, it becomes evident that no transaction of sale of woollen carpets had taken place between the respondent and the appellant, as alleged by the respondent. When the sale of woollen carpets had not taken place, there was no existing debt in discharge of which, the appellant was expected to issue cheques to the respondent. Thus, the accused has discharged the onus of proving that the cheques were not received by the holder for discharge of a debt or liability. The Apex Court in Kumar Exports case (supra) also held that the respondent failed to establish his case under Section 138 of the NIA, 1881 as required by the law. Para Nos. 17, 18 and 25 of the SCC in Kumar Exports case (supra) are quoted below: 17. Section 118 of the Act, inter alia, directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of whole or part of any debt or liability. 18. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 arid 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden of prove Vol. II Era Infra Engineering Ltd. v. Delhi Development Authority and Anr. that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118and 139 of the Act help him shift the burden on the accused. As soon as the complainant discharges the burden of prove Vol. II Era Infra Engineering Ltd. v. Delhi Development Authority and Anr. that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 25. Under the circumstances the defence of the appellant that blank cheques were obtained by the respondent as advance payment also becomes probable and the onus of burden would shift on the complainant. The complainant did not produce any books of account or stock register maintained by him in the course of his regular business or any acknowledgement for delivery of goods, to establish that as a matter of fact woollen carpets were sold by him to the appellant on 6.8.1994 for a sum of Rs. 1,90,348.39. Having regard to the materials on record, this Court is of the opinion that the respondent failed to establish his case under Section138 of the Act as required by law and, therefore, the impugned judgment of the High Court is liable to be set aside. 14. For the foregoing reasons, the present appeal being devoid of merit is, accordingly, dismissed. No order as to costs. Appeal dismissed