Presumption under Section 139

Presumption in favour of holder. — It shall be presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in
whole or in part, of any debt or other liability.

There are presumptions under Section 118 and 139 of the Negotiable Instruments Act in favour of
holder of the cheque.

Until contrary is proved, presumption is in favour of holder of cheque that it was drawn for
discharge of debt or liabilities.

However, it is rebuttable one and accused can rebut it without entering into witness box, through
cross examination of the prosecution witnesses.
Section 4 in the Indian Evidence Act, 1872
“May presume”.—Whenever it is provided by this Act that the Court may presume a fact, it may
either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

“Shall presume”.—whenever it is directed by this Act that the Court shall presume a fact, it shall
regard such fact as proved, unless and until it is disproved.

“Conclusive proof”.—When one fact is declared by this Act to be conclusive proof of another, the Court shall,
on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose
of disproving it.

Once the execution of cheque is admitted, Section 139 creates a presumption that the holder of
a cheque receives the cheque in discharge, in whole or in part, of any debt or other
liability, Basalingappa v. Mudibassapa, 2019 SCC 491.

This presumption is no doubt rebuttable at trial but there is no gainsaying that the same favours
the complainant and shifts the burden to the drawer of the instrument (in case the same is
dishonoured) to prove that the instrument was without any lawful consideration, Laxmi
Dyechem v. State of Gujarat, (2012) 13 SCC 375.

Note: Presumption under Section 139 is frequently read with Section 118 providing presumption
of consideration, presumption as to date on the instrument, etc.

Case of a blank cheque

If a signed blank cheque is voluntarily handed over to a payee, towards some payment, the payee
may fill up the amount and other particulars. This in itself would not invalidate the cheque. The
onus would still be on the accused to prove that the cheque was not in discharge of a debt or
liability by adducing evidence. It is immaterial that the cheque may have been filled in by any
person other than the drawer, if the cheque is duly signed by the drawer, Bir Singh v. Mukesh
Kumar, (2019) 4 SCC 197.
Case of a fiduciary relationship between complainant and accused [relationship of trust and
confidence]

The existence of a fiduciary relationship between the payee of a cheque and its drawer, would
not disentitle the payee to the benefit of the presumption under Section 139, in the absence of
evidence of exercise of undue influence or coercion, Bir Singh v. Mukesh Kumar, (2019) 4
SCC 197.

Rebutting the presumption

In a criminal trial, accused is presumed to be innocent until proved guilty beyond reasonable
doubt. The Latin maxim, ‘Ei incumbit probatio qui dicit, non qui negat’ signify that the
burden of proof is on prosecution, who asserts, not on accused, who denies.

There is an essential distinction between “burden of proof” (Section 101 of Indian Evidence
Act, 1872) and “onus of proof” (Section 102 of the Indian Evidence Act, 1872), “burden of
proof” lies upon the person who has to prove a fact and it never shifts, but the “onus of
proof” shifts. (Addagada Raghavamma and Anr vs Addagada Chenchamma and
Anr, 1964 AIR 136, 1964 SCR (2) 933)

Apex court in Abdulla Mohammed v. State explained the difference between Burden and onus
it was held that Burden of proof lies upon the person who has to prove a fact and it never shifts,
but the Onus of proof shifts. Such a shifting of Onus is a continuous process in evaluation of
evidence. So basically the burden lies on the Prosecution but there are times when the accused is
called upon to prove that his case falls under an exception. Then the onus is on the accused and it
is considered as discharged if the accused person succeeds in proving the preponderance of
probability in his favor and he need not prove his stand beyond reasonable doubt.

In AIR 1966 SC 97 only one point was considered in detail namely, the nature and the extent of
evidence which would discharge the onus of proof placed on an accused person claiming the
benefit of an Exception. Observations on the other point are in consonance with the earlier
decision. The relevant observations made on the point are as below:--

"There is consensus of judicial opinion in favour of the view that where the burden of an issue
lies upon the accused, he is not required to discharge that burden by leading evidence to prove
his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether
the prosecution has discharged its onus to prove the guilt of the accused: but that is not a test
which can be applied to an accused person who seeks to prove substantially his claim that his
case falls under an Exception.
Civil cases may be proved by a preponderance of evidence or that a finding in such cases
may be made upon the basis of a preponderance of probability and I do not propose to
attempt a more precise statement of the rule, in every civil action before the tribunal can
safely find the affirmative of an issue of fact required to be proved it must be reasonably
satisfied, and that whether or not it will be so satisfied must depend upon the totality of the
circumstances on which its judgment is formed including the gravity of the consequences of
the finding.

So, where an accused person is called upon to prove that his case falls under an Exception, law
treats the onus as discharged if the accused person succeeds in proving a preponderance of
probability. As seen the preponderance of probability is proved, the burden shifts to the
prosecution which has still to discharge its original onus. It must be remembered that basically,
the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt
of the accused beyond a reasonable doubt.

when the burden of an issue is upon the accused, he is not, in general, called on to prove it
beyond a reasonable doubt or in default to incur verdict of guilty; it is sufficient if he succeeds in
proving a preponderance of probability, for then the burden is shifted to the prosecution which
has still to discharge its original onus that never shifts, i.e., that of establishing, on the whole
case, guilt beyond a reasonable doubt."

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 doubt about the existence of a legally enforceable debt or liability, the
prosecution can fail. 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 own, Rangappa v. Sri Mohan, (2010) 11 SCC 441.

Not necessary for accused to appear in witness box for rebuttal

It is not necessary for the accused to come in the witness box in support of his defence. Section
139 imposes an evidentiary burden and not a persuasive burden, Basalingappa v. Mudibassapa
, 2019 SCC 491.

Complainant to prove financial capacity if disputed by accused

It is incumbent upon the complainant to prove his financial capacity to extend the loan in
question, if the accused disputes the same, Basalingappa v. Mudibassapa , 2019 SCC 491