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2016 (7) TMI 1610 - HC - Indian LawsDishonor of Cheque - Discrepancies as regards the transaction for which the disputed cheque is alleged to be given - applicability of section 118 r/w with section 139 of the Act - HELD THAT:- It is now well settled that while the complainant is required to establish the case beyond reasonable doubt, the accused can discharge the burden on preponderance of probabilities. This can be done on the basis of the cross examination of the witness of the complainant and any other material available on the record and it is not necessary that for this purpose the accused should enter into the witness box. The question really is about the extent to which such presumption can operate and, can the benefit of such presumption be availed when the case set up by the complaint, is found to be not substantiated. At the cost of repetition, it is necessary to state that the case is that the amount of ₹ 2.50 crores was paid as consideration for purchase of iron ore which transaction never materialized and towards refund of the part of the consideration the cheque was passed. The poof of such a case presupposes that the payment by the respondent/complainant to the petitioner/accused is proved. In the present case admittedly the payment is made to Chowgule and Company and not to the accused and as noticed earlier, even that aspect is not proved on record, as has been admitted by PW 1 on basis of the statement Exhibit 58. Though the respondent claims that the said transaction is the same transaction as in Exhibit 51, the agreement on the contrary shows that it is between M/s. Grand Resources and the petitioner. The findings as recorded by the Courts below are against the weight of the evidence and not borne out of the record and are clearly unsustainable - Criminal Revision application is allowed.
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