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2015 (9) TMI 1721 - CALCUTTA HIGH COURTDishonor of cheque - insufficiency of funds - there was existing liability or not - rebuttal of presumption - preponderance of probability - HELD THAT:- The relationship between the parties was that of cousin brother and naturally the story of advancement of friendly loan to the tune of ₹ 19,000/- cannot be ruled out. This Court on scrutiny of the evidence of this D.W. 1 is not in favour of coming to this conclusion that presumption which the complainant was having under Section 139 was rightly rebutted. It is true that the presumption under Section 139 of the N.I. Act was not that heavy like that of on the prosecution in a criminal trial but it is preponderance of probabilities which is commonly used in civil cases. The respondent did not discharge the initial liability on him in such a case by stopping the payment of the cheque or intimating the matter to the police and naturally these two lapses will cost him much. In view of the discussion so long made and keeping in mind the legal position involved, evidence both oral and documentary, this Court is satisfied that the learned trial Court erred in coming to the conclusion that there was no existing liability on the part of the present respondent. This Court reiterates that the cheque was issued in discharge of existing liability which remained unpaid which is definitely covered under Section 138 of the N.I. Act. This cheque was issued on 26.03.2008. i.e., before more than seven years from today and naturally the complainant has suffered both mentally and financially due to the act on the part of the present accused respondent. This act on the part of the accused must be well compensated. Thus, this Court is satisfied that the complainant appellant duly proved the charge against the accused under Section 138 of the N.I Act. Appeal allowed - decided in favor of appellant.
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