Evidence and Burden of Proof in Cheque Bounce Cases: Lawyers Advice for Cheque Bounce Case in India | Criminal Law Attorney in India | Criminal Law Attorney in Delhi NCR | Criminal Lawyer in Delhi NCR

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Dishonor of a cheque or cheque bounce occurs when a cheque that is presented in the bank is returned unpaid which can be due to various reasons including insufficient amount in the bank, signature mismatch etc. The aggrieved party can institute a suit against the accused under the Negotiable Instruments Act of 1881.

Evidence in a Cheque Bounce Case:
Under Section 145 of the Negotiable Instruments Act of 1881: The Complainant has to furnish his evidence, normally by way of affidavit; in lieu of examination in chief. Documents like bounced cheque, dishonour memo, copy of notice etc are attached to support the case in hand. After which the complaint is cross examined by the accused party and attaches any evidence that should be added in support of his case.

Under Section 146 of the Negotiable Instruments Act of 1881: The provision mentions that the bank slips are prima facie evidence of the facts of the dishonoured cheques.

It provides for adducing evidence at the trial, and permits evidence by way of affidavit. The evidence would include both the witness and the evidence of the accused as it was decided in the case of Indian Bank Association vs. Union of India (2014) 5 SCC 590.It was observed by the Supreme Court that the trial Court shall permit the applicant or the accused to provide for evidence, if there is any by way of affidavit.

The Supreme Court examined the scope of Section 145 of Negotiable Instruments Act in the case of Radhey Shyam Garg v. Naresh Kumar Gupta (2009) 13 SCC 201, the Court held that any person who is examined after the submission of the evidence on affidavit as to the facts contained in the matter therein will only be for the purpose of cross-examination. The provision seeks to be for constructive purposes.

Burden Of Proof
The burden is on the accused to prove that the issuance of cheque was not for discharging any debt/liability.

Presumption in favor of holder of the cheque: In A landmark judgment, the Hon’ble Supreme Court held in the case of Rangappa v. Sri Mohan (2010) 11 SCC 441 that the presumption in the favor of holder of the cheque mentioned under Section 139 of the act does include legally enforceable debt or liability. After the issuance of the cheque which is admitted or proved, the trial Court is duty bound to raise the presumption that the dishonored cheque placed before was certainly issued to discharge a legally enforceable debt or liability of the amount mentioned therein. But it is also important to note that the presumption is a rebuttable. The accused has to prove that the cheque in the matter was not issued for the purpose of legal enforceable debt or liability.

Preponderance of Probability: In a landmark judgment of Rohitbhai Jivanlal Patel v. State of Gujarat C.A. 508 of 2019 the Court held that the presumption under Section 139 of the Negotiable Instruments Act would be drawn allegedly without doubting the complainant. The trial Court questioned regarding the want of evidence on the part of the complainant regarding the source of funds for advancing loan to the accused and want of examination of relevant evidences adduced by the accused. The onus of burden is on the accused and it will be shifted after there are proper evidences adduced to discharge the onus by bringing in relevant facts that shows preponderance of probabilities in the favor of the accused. A doubt on the aggrieved can be raised thereafter.

Proving the claim is on the complainant: The Hon’ble Supreme Court in the case of Uttar Ram vs. Devinder Singh Hudan C.A 1545 of 2019 observed in this case appellant is required to prove a debt before civil Court and the aggrieved is required to prove his claim on the basis of evidence attached in the case for claim for the recovery of the amount due. The holder of cheque in appropriate course of the proceeding is required to prove that the cheque was issued by the accused and that when the same presented, it was not honored. There is a burden on the accused to rebut the presumption that the cheque was issued not for discharging any debt or liability.

The onus is on the accused to prove that the cheque admitted in the case was not in discharge of a debt or liability by adducing evidence. A meaningful reading of the provisions of the Negotiable Instruments Act clarifies that a person who signs a cheque and makes it over to the payee or the drawee remains liable unless attaches any evidence to rebut the presumption and raises a probability that the cheque had not been issued for payment of a debt or in discharge of a liability. It becomes immaterial that the cheque may have been filled in by a third party other than the drawer, if the cheque is appropriately signed by the drawer.
Authored By: Adv. Anant Sharma & Shivangi Ghosh