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2019 (11) TMI 1200 - BOMBAY HIGH COURTDishonor of Cheque - insufficiency of funds - Accursed seeking permission to lead additional evidence - accused had filed complaint against him (the complainant) and his father for cheating - section 391 and 394 of the Code of Criminal Procedure, 1973 - HELD THAT:- Onus lay upon the accused to dislodge the presumptions that the cheque was drawn for consideration and in discharge of a legally enforceable debt or liability. - Whether the accused succeeded in rebutting the presumptions of law warrants adjudication. However, mere failure to place on record the copy of the reply could not have been construed as a failure to dislodge to the presumption especially when it was the claim of the complainant that the accused had replied the statutory demand notice raising false contentions - The situation which, thus, obtains is that so far as the endeavour of the accused to lead evidence in the nature of the documents to demonstrate that the cheque was drawn by way of security only and to contest the quantum of liability for which the cheque was allegedly drawn, the omission to place on record the said documents before the trial court, is clearly in the realm of lacuna for reasons more than one. In the facts of the case, no justifiable ground is made out for such a course, which would have been permissible had there been a resultant failure of justice. Thus, to the extent of those documents, excluding the reply to the demand notice, the learned Sessions Judge was within his rights in rejecting the application. As the factum of reply to the demand notice was indisputable, in my considered opinion, to prevent failure of justice, the accused can be permitted to place the said reply on the record of the Court. However, this would not be construed as an opportunity for the accused to lead evidence aliende in proof of the correctness of the contents of the said reply. Thus, to restrict the powers of the appellate court to receive only oral evidence and exclude documentary evidence from its purview, would be in complete derogation of the letter and spirit of the provisions contained in section 391 of the Code - Application allowed in part.
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