SUMETI VIJversusM/S PARAMOUNT TECH FAB INDUSTRIES

266                       [2021]
               SUPREME COURT     2 S.C.R. 266
                              REPORTS                        [2021] 2 S.C.R.


A                                SUMETI VIJ
                                       v.
                M/S PARAMOUNT TECH FAB INDUSTRIES
                      (Criminal Appeal No(s). 292 of 2021)
B                              MARCH 09, 2021
             [INDU MALHOTRA AND AJAY RASTOGI, JJ.]
            Negotiable Instruments Act, 1881 – s.138 – Order placed by
      the accused-appellant – Delivered – Cheque issued by the appellant
      in the name of complainant-respondent – Returned on presentation
C
      with a note of “insufficient funds” in the account of appellant –
      Notices sent by respondent – Neither responded to nor any payment
      made within the statutory period – Complaints filed by the respondent
      u/s.138 – Finding of acquittal returned by Trial Court – Reversed
      by High Court – Held: Appellant has only recorded her statement
D     u/s.313, CrPC and has not adduced any evidence to rebut the
      presumption that the cheques were issued for consideration – Facts
      remained unrebutted and supported with the evidence on record –
      Appellant rightly convicted by High Court – Code of Criminal
      Procedure, 1973 – s.313.
E          Negotiable Instruments Act, 1881 – Chapter XVII; s.138 –
      Object of introduction – Discussed.
           Negotiable Instruments Act, 1881 – s.139 – Scope of –
      Discussed.
            Dismissing the appeals, the Court
F
            HELD: 1.1 The object of introducing Section 138 and other
      provisions of Chapter XVII in the Negotiable Instruments Act,
      1881 appears to be to enhance the acceptability of cheques in
      the settlement of liabilities. The drawer of the cheque be held
      liable to prosecution on dishonour of cheque with safeguards
G     provided to prevent harassment of honest drawers. Section 138
      primarily relates to a civil wrong and the amendment made in the
      year 2000 specifically made it compoundable. The burden of proof
      was on the accused in view of presumption under Section 139 of

H
                                      266
  SUMETI VIJ v. M/S PARAMOUNT TECH FAB INDUSTRIES                       267


the Act and the standard of proof was of “preponderance of              A
probabilities”. There is a mandate of presumption of
consideration in terms of the provisions of the Act and the onus
shifts to the accused on proof of issuance of cheque to rebut the
presumption that the cheque was issued not for discharge of any
debt or liability in terms of Section 138 of the Act. [Paras 13,
                                                                        B
14][272-D-E; 237-A-B]
      1.2 The scope of Section 139 of the Act is that when an
accused has to rebut the presumption, the standard of proof for
doing so is that of “preponderance or probabilities”. The
proceedings under Section 138 of the Act are quasi-criminal in
nature, and the principles which apply to acquittal in other criminal   C
cases are not applicable in the cases instituted under the Act.
Likewise, under Section 139 of the Act, a presumption is raised
that the holder of a cheque received the cheque for the discharge,
in whole or in part, of any debt or other liability. To rebut this
presumption, facts must be adduced by the accused which on a            D
preponderance of probability (not beyond reasonable doubt as in
the case of criminal offences), must then be proved. [Paras 15-
17][274-A-B; G-H; 275-A-B]
       1.3 In the case at hand, the complainant was able to prove
that the appellant placed the order for purchasing non-woven fabric     E
which was sold vide invoices amounting to Rs.5,07,062/- and
Rs.5,10,000/- which was delivered through public carrier trucks
and in lieu thereof, the cheques in favour of the complainant were
issued by appellant in order to discharge her liability. On the
cheques being presented for encashment, the same were
dishonoured on the ground of “insufficient funds” in the account        F
of the appellant and the same were returned. That apart, when
the complainant exhibited documents in support of his complaints
and recorded the statement of three witnesses in support thereof,
the appellant has recorded her statement under Section 313 of
the Code, but failed to record evidence to disprove or rebut the        G
presumption in support of her defence available under Section
139 of the Act. The appellant has not adduced any evidence to
rebut the presumption that the cheques w ere issued for
consideration. The statement of the accused recorded under
Section 313 of the Code is not a substantive evidence of defence,
                                                                        H
268            SUPREME COURT REPORTS                      [2021] 2 S.C.R.


A     but only an opportunity to the accused to explain the incriminating
      circumstances appearing in the prosecution case of the accused.
      The High Court has not committed any error in recording the
      finding of guilt of the appellant and convicting her for an offence
      being committed under Section 138 of the Act under its impugned
      judgment which needs no further interference. [Paras 12, 18, 21
B
      and 24][277-C-E; 278-A-B; 279-C-D]
            K. Prakashan v. P.K. Surenderan (2008) 1 SCC 258 :
            [2007] 10 SCR 1010; Indus Airways Private Limited
            and Others v. Magnum Aviation Private Limited and
            Another (2014) 12 SCC 539 : [2014] 5 SCR 56 – held
C           inapplicable.
            Rangappa v. Sri Mohan (2010) 11 SCC 441 : [2010]
            6 SCR 507; Rohitbhai Jivanlal Patel v. State of Gujarat
            and Another (2019) 18 SCC 106; Uttam Ram v. Devinder
            Singh Hudan and Another (2019) 10 SCC 287 – relied
D           on.
                             Case Law Reference
      [2007] 10 SCR 1010              held inapplicable      Para 8
      [2014] 5 SCR 56                 held inapplicable      Para 8
E
      [2010] 6 SCR 507                relied on              Para 15
      (2019) 18 SCC 106               relied on              Para 17
      (2019) 10 SCC 287               relied on              Para 17
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F     No. 292 of 2021.
            From the Judgment and Order dated 30.04.2019 of the High Court
      of Himachal Pradesh at Shimla in Cr. Appeal No. 483 of 2012
            With
G           Criminal Appeal No. 293 of 2021
            Ritesh Khatri, Adv. for the Appellant.
            Amit Gupta, Hari Shankar Mahapatra, M/s. Mitter & Mitter Co.,
      Advs. for the Respondent.
H
  SUMETI VIJ v. M/S PARAMOUNT TECH FAB INDUSTRIES                              269


        The Judgment of the Court was delivered by                             A
        RASTOGI, J.
        1. Leave granted.
        2. The appellant is aggrieved by the judgment dated 30th April,
2019 passed by the High Court of Himachal Pradesh holding the appellant
guilty of offence under Section 138 of the Negotiable Instruments Act,         B
1881 (hereinafter referred to as the “Act”) after reversal of the finding
of acquittal returned by the learned trial Judge by its judgment dated 28 th
September, 2012.
        3. The brief facts of the case which emanates from the record
are that the appellant accused approached the complainant- respondent          C
in its factory at Moginand and expressed her desire to purchase non-
woven fabric from the complainant. On the basis of order placed by the
appellant, non-woven fabric was sold to the appellant vide invoice No.120
dated 01st October, 2010 and invoice No.135 dated 16th October, 2010
amounting to Rs.5,07,062/- and Rs.5,10,000/- which was delivered
through public carrier truck bearing Nos. HR-38G-5607 and HP-71-               D
0693 to the appellant accused and in lieu thereof, a cheque bearing
No.323930 dated 15th October, 2010 and No.323935 dated 01st November,
2010 were issued by the appellant in the name of the complainant from
her account of the Punjab National Bank, Karnal in order to meet the
legal existing and enforceable liabilities. The cheques on presentation        E
were returned vide memo dated 19th October, 2010 and 10th November,
2010 from Punjab National Bank, Karnal with a note of “insufficient
funds” in the account of the appellant. Two legal notices dated 29th
October, 2010 and 19th November, 2010 were sent by the complainant
to the appellant on two addresses. The notices were duly served but the
appellant neither responded to the notices nor made any payment in             F
furtherance thereto within the statutory period hence, two separate
complaints were filed by the complainant-respondent under Section 138
of the Act against the appellant-accused.
        4. The complainant-respondent recorded the preliminary evidence
before the learned trial Judge and thereafter, the appellant-accused was       G
directed to be summoned for committing an offence punishable under
Section 138 of the Act. After the presence of the appellant had been
secured, the learned trial Judge put notice of accusation, vis-a-viz the
accused, for an offence allegedly committed by her under Section 138
of the Act whereto she pleaded not guilty and claimed trial.
                                                                               H
270             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A            5. The complainant in order to prove its case against the appellant-
      accused, has examined three witnesses and placed reliance on the
      documentary evidence which were duly exhibited and referred to in
      detail by the learned trial Judge in para 3 of its judgment. On conclusion
      of recording of complainant’s evidence, the statement of the appellant-
      accused was recorded under Section 313 of the Code of Criminal
B
      Procedure (hereinafter referred to as the “Code”) by the learned trial
      Judge wherein the appellant-accused claimed innocence and pleaded
      false implication in the case however, did not lead any evidence in
      defence.
             6. On perusal of the evidence on record, the learned trial Judge
C     returned a finding that the complainant failed to establish that the material/
      goods were delivered to the appellant in lieu of which, the cheques were
      issued, and in the absence of burden being discharged by the complainant,
      the onus to disprove or rebut the presumption could not be shifted to the
      appellant as referred under Section 139 of the Act. Accordingly, the trial
D     court returned the finding of acquittal of the appellant, which was the
      subject matter of challenge in appeal before the High Court at the instance
      of the complainant.
             7. The High Court on reappraisal of the evidence on record
      affirmed that the primary burden was discharged by the complainant
E     that the cheques were issued by the appellant in lieu of the material
      supplied, and documentary evidence duly exhibited was placed on record
      to substantiate the claim, and it was for the appellant-accused to discharge
      her burden to rebut in defence as required under Section 139 of the Act.
      In the instant case, the appellant only recorded her statement under
      Section 313 of the Code. However, no evidence was recorded to disprove
F     or rebut the presumption in defence. Taking into consideration the overall
      material on record while setting aside the finding of acquittal recorded
      by the trial Judge, held that the appellant was guilty of committing an
      offence under Section 138 of the Act and consequently, awarded
      appropriate punishment of fine/sentence by the impugned judgment dated
G     30th April, 2019, which is the subject matter of challenge in appeals before
      us.
            8. Learned counsel for the appellant submitted that the complainant
      was not able to prove that the material/goods were ever sent or received
      by the appellant and in terms of the complaint, the burden was on the
H     complainant to prove that the material/goods were received by the
     SUMETI VIJ v. M/S PARAMOUNT TECH FAB INDUSTRIES                           271
                      [AJAY RASTOGI, J.]

appellant, against which the cheques were received as security and even        A
though the appellant has not placed any evidence to disprove or rebut
the presumption in defence, still the complainant has to discharge its
burden and has to stand on his own legs. In the absence of the prima-
facie burden being discharged by the complainant, mere issuance of the
cheques by the appellant would not have been sufficient to justify that
                                                                               B
the cheques were issued in discharge of any debt or other liability. In
support of his submission, learned counsel for the appellant has placed
reliance on the judgment of this Court in K. Prakashan vs. P.K.
Surenderan 1and Indus Airways Private Limited and Others Vs.
Magnum Aviation Private Limited and Another2.
        9. Learned counsel for the appellant further submits that the          C
appellant was able to succeed in creating a doubt in the mind of the
court below with regard to the non-existence of the debt or liability, and
the learned trial court had returned the finding based on the material
available on record. Unless it was found to be perverse or unsustainable,
or a case of non-consideration of any relevant material, the High Court        D
was not justified in reversing and setting aside the finding of acquittal
recorded by the trial court merely on the ground that the view expressed
by the High Court is more plausible with what being expressed by the
trial court in its judgment dated 28th September, 2012.
        10. Learned counsel for the appellant further submits that the         E
finding recorded by the High Court in the impugned judgment is contrary
to the settled principles of law as considered by this Court in appreciating
the mandate of Sections 118(a), 138 and 139 of the Act. In consequence
thereof, the finding of guilt which has been recorded by the High Court
in the impugned judgment is unsustainable in law, and has to be set aside.
                                                                               F
       11. Per contra, learned counsel for the complainant-respondent
while supporting the finding recorded by the High Court in the impugned
judgment submitted that there was sufficient material available on record
to justify that these cheques were issued with reference to the invoices
after delivery of goods, which were duly exhibited, and cheques were
issued in lieu thereof. In the sequence of facts, the cheques issued by        G
the appellant, on due presentation to the bank got dishonoured on the
ground of “insufficient funds”. The statutory notice was issued to the
appellant, who failed to respond. The complaints were filed by placing
1
    (2008) 1 SCC 258
2
    (2014) 12 SCC 539                                                          H
272            SUPREME COURT REPORTS                          [2021] 2 S.C.R.


A     all documentary evidence in support of the complaint duly exhibited, and
      three witnesses in support thereof were examined, and was able to
      establish and discharge the burden of proof. It was for the appellant to
      come forward with her defence, and prove to the contrary as envisaged
      under Section 139 of the Act.
B            12. In the instant case, the appellant has only recorded her
      statement under Section 313 of the Code, and has not adduced any
      evidence to rebut the presumption that the cheques were issued for
      consideration. Once the facts came on record remained unrebutted and
      supported with the evidence on record with no substantive evidence of
      defence of the appellant to explain the incriminating circumstances
C     appearing in the complaint against her, no error has been committed by
      the High Court in the impugned judgment, and the appellant has been
      rightly convicted for the offence punishable under Section 138 of the
      Act and needs no interference of this Court.
              13. The object of introducing Section 138 and other provisions of
D     Chapter XVII in the Act appears to be to enhance the acceptability of
      cheques in the settlement of liabilities. The drawer of the cheque be held
      liable to prosecution on dishonour of cheque with safeguards provided to
      prevent harassment of honest drawers. Section 138 primarily relates to
      a civil wrong and the amendment made in the year 2000 specifically
E     made it compoundable. The burden of proof was on the accused in view
      of presumption under Section 139 of the Act and the standard of proof
      was of “preponderance of probabilities”. The N.I. Act including a cheque
      carrying a presumption of consideration in terms of Sections 118(a) and
      139 of the Act which is related to the purpose referred to and reads as
      under:-
F
            “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
G           it has been accepted, indorsed, negotiated or transferred, was
            accepted, indorsed, negotiated or transferred for consideration;
            ……..
            139. Presumption in favour of holder.—It shall be presumed,
            unless the contrary is proved, that the holder of a cheque received
H
  SUMETI VIJ v. M/S PARAMOUNT TECH FAB INDUSTRIES                              273
                   [AJAY RASTOGI, J.]

      the cheque of the nature referred to in section 138 for the discharge,   A
      in whole or in part, of any debt or other liability.”
       14. There is a mandate of presumption of consideration in terms
of the provisions of the Act and the onus shifts to the accused on proof
of issuance of cheque to rebut the presumption that the cheque was
issued not for discharge of any debt or liability in terms of Section 138 of   B
the Act, which reads as under:-
      “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           C
      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,           D
      without prejudice to any other provisions of this Act, be punished
      with imprisonment for 8 [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—      E

      (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       F
             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
                                                                               G
      (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.”         H
274               SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A            15. The scope of Section 139 of the Act is that when an accused
      has to rebut the presumption, the standard of proof for doing so is that of
      “preponderance or probabilities” which has been examined by a three-
      Judge Bench of this Court in Rangappa vs. Sri Mohan3, which reads
      as under:-
B              “26. In light of these extracts, we are in agreement with the
               respondent claimant that the presumption mandated by Section
               139 of the Act does indeed include the existence of a legally
               enforceable debt or liability. To that extent, the impugned
               observations in Krishna Janardhan Bhat [(2008) 4 SCC 54 :
               (2008) 2 SCC (Cri) 166] may not be correct. However, this does
C              not in any way cast doubt on the correctness of the decision in
               that case since it was based on the specific facts and circumstances
               therein. As noted in the citations, this is of course in the nature of
               a rebuttable presumption and it is open to the accused to raise a
               defence wherein the existence of a legally enforceable debt or
D              liability can be contested. However, there can be no doubt that
               there is an initial presumption which favours the complainant.
               27. 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. While Section
E              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
F              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 defendant-accused cannot be
               expected to discharge an unduly high standard or proof.”
G            16. It is well settled that the proceedings under Section 138 of the
      Act are quasi-criminal in nature, and the principles which apply to acquittal
      in other criminal cases are not applicable in the cases instituted under
      the Act.

      3
H         (2010) 11 SCC 441
     SUMETI VIJ v. M/S PARAMOUNT TECH FAB INDUSTRIES                              275
                      [AJAY RASTOGI, J.]

       17. Likewise, under Section 139 of the Act, a presumption is raised        A
that the holder of a cheque received the cheque for the discharge, in
whole or in part, of any debt or other liability. To rebut this presumption,
facts must be adduced by the accused which on a preponderance of
probability (not beyond reasonable doubt as in the case of criminal
offences), must then be proved. In Rohitbhai Jivanlal Patel vs. State
                                                                                  B
of Gujarat and Another4, this Court has examined the scope of Sections
138 and 139 of the Act, which reads as under:-
         “15. So far the question of existence of basic ingredients for
         drawing of presumption under Sections 118 and 139 of the NI Act
         is concerned, apparent it is that the appellant-accused could not
         deny his signatures on the cheques in question that had been drawn       C
         in favour of the complainant on a bank account maintained by the
         accused for a sum of Rs 3 lakhs each. The said cheques were
         presented to the bank concerned within the period of their validity
         and were returned unpaid for the reason of either the balance
         being insufficient or the account being closed. All the basic            D
         ingredients of Section 138 as also of Sections 118 and 139 are
         apparent on the face of the record. The trial court had also
         consciously taken note of these facts and had drawn the requisite
         presumption. Therefore, it is required to be presumed that the
         cheques in question were drawn for consideration and the holder
         of the cheques i.e. the complainant received the same in discharge       E
         of an existing debt. The onus, therefore, shifts on the appellant-
         accused to establish a probable defence so as to rebut such a
         presumption.
         …….
                                                                                  F
         17. On the aspects relating to preponderance of probabilities, the
         accused has to bring on record such facts and such circumstances
         which may lead the Court to conclude either that the consideration
         did not exist or that its non-existence was so probable that a prudent
         man would, under the circumstances of the case, act upon the
         plea that the consideration did not exist. This Court has, time and      G
         again, emphasised that though there may not be sufficient negative
         evidence which could be brought on record by the accused to
         discharge his burden, yet mere denial would not fulfil the

4
    (2019) 18 SCC 106                                                             H
276      SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A     requirements of rebuttal as envisaged under Sections 118 and 139
      of the NI Act. This Court stated the principles in Kumar
      Exports [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513]
      “20. The accused in a trial under Section 138 of the Act has two
      options. He can either show that consideration and debt did not
B     exist or that under the particular circumstances of the case the
      non-existence of consideration and debt is so probable that a
      prudent man ought to suppose that no consideration and debt
      existed. To rebut the statutory presumptions an accused is not
      expected to prove his defence beyond reasonable doubt as is
      expected of the complainant in a criminal trial. The accused may
C     adduce direct evidence to prove that the note in question was not
      supported by consideration and that there was no debt or liability
      to be discharged by him. However, the court need not insist in
      every case that the accused should disprove the non-existence of
      consideration and debt by leading direct evidence because the
D     existence of negative evidence is neither possible nor contemplated.
      At the same time, it is clear that bare denial of the passing of the
      consideration and existence of debt, apparently would not serve
      the purpose of the accused. Something which is probable has to
      be brought on record for getting the burden of proof shifted to the
      complainant. To disprove the presumptions, the accused should
E     bring on record such facts and circumstances, upon consideration
      of which, the court may either believe that the consideration and
      debt did not exist or their non-existence was so probable that a
      prudent man would under the circumstances of the case, act upon
      the plea that they did not exist. Apart from adducing direct evidence
F     to prove that the note in question was not supported by
      consideration or that he had not incurred any debt or liability, the
      accused may also rely upon circumstantial evidence and if the
      circumstances so relied upon are compelling, the burden may
      likewise shift again on to the complainant. The accused may also
      rely upon presumptions of fact, for instance, those mentioned in
G     Section 114 of the Evidence Act to rebut the presumptions arising
      under Sections 118 and 139 of the Act.
      21. The accused has also an option to prove the non-existence of
      consideration and debt or liability either by letting in evidence or in
      some clear and exceptional cases, from the case set out by the
H
     SUMETI VIJ v. M/S PARAMOUNT TECH FAB INDUSTRIES                            277
                      [AJAY RASTOGI, J.]

         complainant, that is, the averments in the complaint, the case set     A
         out in the statutory notice and evidence adduced by the complainant
         during the trial. Once such rebuttal evidence is adduced and
         accepted by the court, having regard to all the circumstances of
         the case and the preponderance of probabilities, the evidential
         burden shifts back to the complainant and, therefore, the
                                                                                B
         presumptions under Sections 118 and 139 of the Act will not again
         come to the complainant’s rescue.”
     It was further considered by this Court in Uttam Ram vs.
Devinder Singh Hudan and Another5.
       18. In the case at hand, elucidating from the principles, the            C
complainant was able to prove that the appellant placed the order for
purchasing non-woven fabric which was sold vide invoice No. 120 dated
01 st October, 2010 and invoice No. 135 dated 16 th October, 2010
amounting to Rs.5,07,062/- and Rs.5,10,000/- which was delivered
through public carrier truck bearing Nos. HR-38G-5607 and HP-71-
0693 and in lieu thereof, the cheques bearing No.323930 dated 15th              D
October, 2010 and No.323935 dated 01st November, 2010 in favour of
the complainant were issued by appellant in order to discharge her liability.
On the cheques being presented for encashment to the State Bank of
India, Branch Kala Amb, the same were dishonoured on the ground of
“insufficient funds” in the account of the appellant and the same were          E
returned vide memo dated 19th October and 10th November, 2010 by
Punjab National Bank, Karnal.
       19. Thereafter, two separate legal notices were served by the
complainant which were duly received by the appellant and even after
receiving the said notices, the appellant neither responded to the notices      F
nor made any payment within the statutory period of fifteen days and
only thereafter, two separate complaints were filed by the complainant
under Section 138 of the Act against the appellant-accused.
       20. There was no response by the appellant at any stage either
when the cheques were issued, or after the presentation to its banker, or       G
when the same were dishonoured, or after the legal notices were served
informing the appellant that both the cheques on being presented to its
banker were returned with a note that it could not be honoured because
of “insufficient funds”.
5
    (2019) 10 SCC 287                                                           H
278               SUPREME COURT REPORTS                        [2021] 2 S.C.R.


A            21. That apart, when the complainant exhibited all these documents
      in support of his complaints and recorded the statement of three witnesses
      in support thereof, the appellant has recorded her statement under Section
      313 of the Code, but failed to record evidence to disprove or rebut the
      presumption in support of her defence available under Section 139 of
      the Act. The statement of the accused recorded under Section 313 of
B
      the Code is not a substantive evidence of defence, but only an opportunity
      to the accused to explain the incriminating circumstances appearing in
      the prosecution case of the accused. Therefore, there is no evidence to
      rebut the presumption that the cheques were issued for consideration.
             22. The judgment on which learned counsel for the appellant has
C     placed reliance i.e. K. Prakashan vs. P.K. Surenderan6 may not be of
      any assistance for the reason that in the case dealing under Section 138
      of the Act, the prosecution has to prove the case and these cases being
      quasi-criminal in nature are to be proved on the basis of the principles of
      “preponderance of probabilities”, and not on the principles as being
D     examined in the criminal case to prove the guilt of the accused beyond
      reasonable doubt. So far as other case cited by the learned counsel for
      the appellant i.e. Indus Airways Private Limited and Others Vs.
      Magnum Aviation Private Limited and Another 7 , there was
      sufficiency of material on record to justify that the cheques were issued
      as advance payment for purchase of goods, and one of the terms and
E     conditions of the contract was that the entire payment would be made to
      the supplier in advance. However, much within the time, the supplier-
      complainant received the letter from the purchasers cancelling the
      purchase orders and requested the supplier to return both the cheques.
      The supplier pursuant thereto, sent response asking the purchasers as to
F     when the supplier could collect the payment, and only thereafter, the
      suppler sent a legal notice to the purchasers and filed a complaint under
      Section 138 of the Act. In the given circumstances, it was observed by
      this Court that the complainant had failed even prima-facie that there
      was a legally enforceable debt or other liability subsisting on the date of
      drawal of the cheque as contemplated under Section 138 of the Act.
G     This judgment would not be of any help to the appellant in the instant
      case.

      6
          (2008) 1 SCC 258
      7
          (2014) 12 SCC 539
H
  SUMETI VIJ v. M/S PARAMOUNT TECH FAB INDUSTRIES                                  279
                   [AJAY RASTOGI, J.]

       23. When the matter was earlier heard on 01st March, 2021, we               A
directed the learned counsel for the appellant to seek instructions whether
his client is ready to make payment of the stated cheque amount in both
the criminal appeals i.e. Rs.5,07,062/- and Rs.5,10,000/- and posted the
matter for further hearing on 05th March, 2021. Learned counsel for the
appellant on instructions, informed that his client is not willing to discharge
                                                                                   B
the stated amount, and wants to argue the case on merits. After hearing
the counsel for both the parties, we reserved the order on 05th March,
2021 and still afforded an opportunity that by 06th March, 2021 evening,
the appellant can still re-consider her instructions as noticed by us in the
order of 01st March, 2021. It has been informed to us that the appellant
is interested to get the outcome of the present appeals on merits.                 C
      24. In the given circumstances, the High Court, in our view, has
not committed any error in recording the finding of guilt of the appellant
and convicting her for an offence being committed under Section 138 of
the Act under its impugned judgment, which in our considered view,
needs no further interference. Consequently, the appeals are without               D
any substance, and are accordingly dismissed.
      25. The bail bonds stand cancelled and the appellant shall either
pay the fine, or serve the sentence in compliance with the judgment
dated 30th April, 2019 passed by the High Court of Himachal Pradesh.
       26. Pending application(s), if any, shall stand disposed of.                E


Divya Pandey                                                   Appeals dismissed


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