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2017 (4) TMI 1566 - HC - Indian LawsDishonor of cheque - insufficiency of funds - preponderance of probability - initial presumption arising under Sections 118 and 139 of NI Act - Standard of proof to prove defence on the part of accused - HELD THAT:- There is no corresponding provision under the N.I. Act, which would vitiate the entire loan transaction for dealing with cash amount above ₹ 20,000/-. The culpability of offence under Section 138 of the Act will not freeze for the reason of violation of Section 269SS of the I.T.Act and nothing prevents the operation of the statutory presumption under Sections 118 and 139 of the Act. The accused in his attempt to dislodge the initial presumption arising out of the evidence of complainant produced the order sheet pertaining to the proceedings under Section 13-B of the Hindu Marriage Act filed by the complainant and her husband and also the copy of the joint petition filed therein. The petition for divorce by mutual consent was filed on 30.5.2005 and it was disposed of on 12.9.2006, since the complainant was not willing for divorce by mutual consent. It stands clear that the accused failed to dislodge the statutory presumption under Section 118(a) of the Act that he had issued the cheque for consideration; further, the presumption under Section 139 of the Act that the cheque was issued towards discharge of legally recoverable debt could not be shaken. Petition dismissed.
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