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2022 (1) TMI 191 - MADRAS HIGH COURTDishonor of Cheque - insufficiency of funds - existence of transaction and consideration or not - presumption under Section 139 of the Negotiable Instruments Act - preponderance of probability - whether the revision petitioner/accused discharged the burden of proof with positive evidence by probablising the suggestive case? - HELD THAT:- On perusal of Ex.P1 marked through D.W.1, it is found that the complainant has no means to advance such a huge amount of ₹ 4 lakhs and it is only is oral evidence. However, Ex.D1 statement of bank accounts shows that it never exceeded ₹ 10,000/- the account of company at relevant point of time and the entire amount ODT only assumes significance. It is the burden on the shoulder of the accused to prove non existence passing of consideration for the issuance of cheque. The same can be either by direct or by bringing on record, the preponderance of the probability or by reference of the suggestive upon which he relied on. It may not insist upon the accused to disprove the existence of the consideration by leading direct evidence as the leading negative evidence neither possible nor contemplated. This Court finds that the revision petitioner/accused has successfully demonstrated before the Court that the private complainant does not possess sufficient source of income to lend to ₹ 4 lakhs at relevant point of time - in the complaint and in the deposition, P.W.1 has stated that A3 has issued the cheque and hence it is found that the evidence of P.W.1 regarding passing of consideration for A1 and A2 issuance of cheque by A3 suffers from material implementation amounting to material contradiction on the point of passing of consideration and issuance of the cheque by A3 therefor. In the circumstances, the cloud has been created has to be issuance of the cheque by A3 to the private complainant. Before the trial Court, A2 was acquitted and there is no appeal as against the acquittal of A2 also assumes significance and hence I find that A3 has successfully demonstrated that there does not exists any legally enforceable debt between the respondent- complainant and the accused and theory forwarded by the private complainant in Ex.P3 complaint is totally different from that of the complaint and the P.W.1 evidence passing off consideration for issuance of the cheque by A3 is under cloud - In the absence of any other explanation by the complainant that he had some other account or any evidence to show the source of income after the rebuttal, this Court holds that the accused has successfully demonstrated the rebuttal of presumption and then it becomes duty has caused upon the private complaint to demonstrate his source of income. Admittedly, no re-examination or any additional documents was marked - the order of conviction passed by both the Courts below is erroneous on the facts and circumstances of the case - Criminal Revision Petition is allowed.
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