Rebuttable Presumption I

The presumption under Section 139 is a rebuttable presumption; Section 139 is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the accused and the accused cannot be expected to discharge an unduly high standard of proof; the standard of proof for rebutting the presumption is that of preponderance of probabilities; inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely [Rangappa v. Sri Mohan, (2010) 11 SCC 441].

Trial Court after considering the evidence and material on record held that if the accused is able to raise a probable defense which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. It was clear that signature on cheque was admitted. The question to be looked into was to whether any probable defence was raised by the accused. There was a burden on the complainant to prove his financial capacity. We fail to see that how the Trial Court’s findings can be termed as ‘perverse’ by the High Court. We are satisfied that accused has raised a probable defence. Judgment of the High Court is set aside and Judgment of Trial Court is restored.”

Hon’ble Justice Ashok Bhushan, Basalingappa v. Mudibasappa, [Criminal Appeal No. 636 of 2019].