This post by me arose in a different trailing post, but will be useful for all innocent accused.
1. Agreed that NI Act is a special Act, and it bypasses certain provisions of CrPC, the most important bypass is taking affidavit as examination in chief, in absence of accused.
2. You seem to be using word accused with innocence. A person is innocent in our criminal law till proven guilty, a person is innocent under S.138, under DV Act, under NDPS Act, under Prevention of Corruption Act, under 376 IPC till he is proven guilty. Why I am naming these acts, is that there are certain presumptions which are against the accused, but these presumptions can only be drawn if certain basic ingredients are proved and they are of evidentiary value and rebuttable.
3. For example under S.139, there is a presumption that so and so cheque was received by the Holder to clear certain debt or liability. Now to avail this presumption the execution is to be proved or admitted, the complainant must prove that he is holder (this aspect is erroneously not fully taken up by the Hon Courts). Once these aspects are proved then this presumption is granted to the complainant, now the accused must rebut it. So there is no presumption of guilt here. The presumption of innocence is almost a fundamental presumption, and always available to accused till he is proved guilty. I have not encountered any order, where the court has presumed that accused under S.138 is guilty from day one. It is ridiculous and illegal to ask someone to prove his innocence, the prosecution has to prove the guilt beyond doubt. Yes, the Hon court may ask, certain evidentiary value presumptions to be rebutted by accused. That is in all the laws that a rebuttal is required to be given for all the inculpatory evidences.
4. Take it this way, a cheque can be issued for many purpose, it can be issued to clear the liability, for Gift, for advance, for some kind of margin money, even for different liability if multiple liabilities are existing between two persons. Under the circumstances if the complainant satisfies the basic ingredients and states that so and so cheque was issued to clear the liability X, then the Hon court shall presume that "Yes cheque was issued to clear this liability only." Accused cannot say that it was given for Gift or for some other purpose without proof, if presumption was not there then complainant would be required to even prove that the cheque was not given for Gift or for some other purpose, which would invariably be very difficult, and the accused will always come out defeating the very purpose of Act.
There is no presumption with respect to amount (again erroneously taken by courts), it must be proved by prosecution. For example X takes Scooter Loan, Car Loan and Home Loan from Y. Now a blank cheque was issued at the time of Scooter Loan. In due course X clears his Scooter Loan and Car Loan but fails to repay the Home Loan.
Y mis-uses the cheque as given at the time of Scooter Loan, fills it up and gets it dishonored and files the case under S.138 and comes up with a story that the said cheque was issued by drawer for so much of pending Home Loan (he must prove the amount against Home Loan). Once this is done the Hon Court is bound to presume that the cheque was indeed issued for Home Loan. The accused can rebut this as follows (apart from many technicalities):
1. That the amount as alleged/proved by complainant is not correct.
2. That the cheque was given for Scooter Loan.
3. he can even prove that the cheque was signed and issued six months before the dishonor.
I am glad that you wish to take up such matter with Hon SC. It is shocking that majority of the counsels feel that there is no need for complainant to prove the debt, and accused gets wrongly convicted. It is my urge to all the defense counsels to fight tooth and nail that the prosecution must prove the amount as alleged in the debt. How long the Hon SC will remain the mute spectator that S.139 is misunderstood, badly misunderstood by the Hon courts. There is no presumption with respect to existence of facts behind debt (Read S.101 of The Indian Evidence Act).
