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2020 (10) TMI 726 - KERALA HIGH COURTDishonor of Cheque - insufficiency of funds - discharge of a legally enforceable debt or not - offence punishable under section 138 of NI Act or not - HELD THAT:- It is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. Having regard to the materials on record, this Court is of the view that the accused failed to adduce evidence to rebut the presumption or a probable case to shift the burden to the complainant. It is well settled law that in a revision against conviction and sentence rendered concurrently by the trial court as well as the appellate court, the High Court does not, in the absence of perversity, upset factual findings arrived at by the appellate court. It is not for the revisional court to re-analyse and re-interpret the evidence on record in a case where the appellate court has come to a probable conclusion. On going through the impugned judgment, this Court is of the view that the appellate court correctly applied the presumption under Section 139 of the Act. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. On a perusal of the entire evidence, it is disclosed that Ext.P2 cheque was issued to the complainant. The cheque was presented in time. Notice was issued calling upon the accused to pay the amount covered under the cheque within 15 days from the date of receipt of the notice in accordance with law. The amount was not paid as demanded. Hence, all the legal formalities under Section 138 of the NI Act have been complied with - In the case at hand, the accused has no case that she has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. In view of the above, this Court is of the view that the trial court and the appellate court rightly entered a finding that Ext.P2 cheque was issued for a legally enforceable debt. Accordingly, the case of the complainant has been proved beyond reasonable doubt. The offence punishable under Section 138 of the NI Act is punishable with imprisonment or with fine or with both. Considering the fact that the accused is a lady aged 66 years, it is not necessary to impose compulsory imprisonment on her. Hence, the sentence imposed is liable to be modified - application allowed in part.
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