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2018 (1) TMI 1556 - BOMBAY HIGH COURTDishonor of Cheque - repayment of loan not made - legally enforceable debt or not - offence punishable under Section 138 of NI Act - Acquittal of accused - HELD THAT:- It is manifest that the accused has failed to rebut the statutory presumptions under Sections 118 and 139 of the Act. The learned Magistrate was pleased to hold, and the finding is unexceptionable, that the defence of the accused that he issued the four cheques as donation, is not believable - It is true that the defence need not be conclusively established. However, the Court must be satisfied on the basis of the evidence adduced that the defence is reasonably probable. Ii is satisfying that even if the test of preponderance of probabilities is applied, the accused failed to raise a defence which creates doubt about the existence of legally enforceable debt. The nature of the initial burden of proof on the accused to rebut the statutory presumption under Section 139 is explained by the Hon'ble Apex Court in MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. [2006 (7) TMI 576 - SUPREME COURT] - The learned Magistrate has committed a serious error of law in not correctly appreciating the import and implication of statutory presumptions on the anvil of the position of law settled by the Hon'ble Apex Court. The accused is convicted for offence punishable under Section 138 of the Act and is sentenced to payment of fine of ₹ 1,59,000/- and in default to undergo simple imprisonment for period of six months.
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