CHEQUE DISHONOUR SEC 138 NI ACT: The accused cannot be insisted to lead the negative evidence; Accused was acquitted.

Justice Ashok Bhushan and Justice K M Joseph 

The latest judgement of the supreme court delivered on 9th of April 2019, after tracing the judicial precedents, has settled the position of law qua 138 NI Act. It was held that the accused cannot be insisted to lead negative evidence.

It was further held the accused is not required in law to prove his defence by way of direct evidence or by leading evidence. The evidence led by the complainant can also be relied upon for demolishing  the case of the complainant in the complaint filed under section 138 NI act.

The supreme court in the case titled as 'Basalingappc Versus Mudibasappc'  has summarised the principles of 138 NI act, inter alia, in para number 23 of the judgment.

The Supreme Court held that the section 138 NI Act impose evidentary burden upon the accused not the persuasive burden.

The pertinent observation was also made by the apex court about the fact that when the financial capacity of the complainant is questioned by the accused then in that case the burden is upon the complainant to prove his financial capacity. 

It was further held that the evidence which has already been brought on record may also be considered in support of defence of the accused.

Finally after doing threadbare discussion about the judicial precedents and the facts of the case and the evidence which has come on record, the Supreme Court has set aside the judgement of the high court and set the accused free from his conviction under section 138 NI Act.

The Appeal was accordingly allowed.