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2013 (7) TMI 1163 - HC - Indian LawsPreponderance of Probabilities - Presumption in favour of Holder u/s 139 of NI Act - Appellant claimed that respondent took loan from him and repaid part of it through cheque, rest of the cheques were dishonoured. Respondent claimed that the cheques were obtained by appellant by force. Respondent was not having balance in account so cheques were dishonoured. Appellant's claims and justifications raised a doubt on the claims of the respondent. - HELD THAT:- Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. Initial presumption favours the complainant. Absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. If the respondent is able to raise a probable defence that creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. But in this case, the respondent couldnot prove his defence thus held liable. Decision in the case of - SANJAY MISHRA VERSUS KANISHKA KAPOOR AND ORS. [2009 (2) TMI 901 - BOMBAY HIGH COURT] was humbly dissented.
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