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2019 (7) TMI 1821 - HC - Indian LawsDishonor of Cheque - failure to repay despite receipt of legal Notice - acquittal of the accused - rebuttal of presumption - HELD THAT:- It transpires that an amount of ' 4,00,000/- was paid by the complainant to the accused and it was duly acknowledged by the accused by executing Exhibit 19. From the evidence of the appellant/complainant and of Pw2 Dinesh it has been established that the Cheque Exhibit 16 was dishonoured for want of sufficient funds in the account of the respondent/accused as well as the fact of payment of a lump sum amount of ' 4,00,000/- to the complainant. This would lead to a presumption under Sec. 139 of the Negotiable Instruments Act, in favour of the appellant/complainant. On the aspect of presumption under Section 139 of the Negotiable Instruments Act, and on the point of unaccounted money - The Apex Court [2009 (2) TMI 901 - BOMBAY HIGH COURT] specifically held that section 139 merely raises a presumption in favour of holder of cheque that the same has been issued for discharge of any debt or liability. Thus, even if presumption is not rebutted, Act, in order to attract section 138 of the debt has to be a "legally enforceable debt" as said is clear from the explanation to section 138 which provides that for the purposes of the said section the debt or other liability means a legally enforceable debt or other liability. Though it is observed in para 15 that the same rule with the same rigor cannot be applied in a matter relating to the offences under Sec. 138 of the Negotiable Instruments Act, particularly where a presumption is drawn that the holder has received a cheque for the discharge, wholly or in part, of any debt or liability. However, it is further observed that the accused is entitled to bring on record the relevant material to rebut the presumption and to show that preponderance of probabilities are in favour of his defence then the Appellate Court is certainly entitled to examine the evidence in order to find out if preponderance indeed leans in favour of the accused - In the case at hand, the respondent/accused has succeeded in bringing on record probable defences and has rebutted the presumption; the complainant has not further discharged his burden to indicate that the transaction in question was a legally enforceable debt. It is therefore, needless to take any different view other than the one taken by the Learned J.M.F.C., in the impugned Judgment while acquitting the respondent/accused. Appeal dismissed.
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