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2021 (2) TMI 1258 - MADRAS HIGH COURTDishonor of Cheque - funds insufficient - offence under Section 138 r/w 142 of the Negotiable Instruments Act - rebuttal of presumption - Whether the finding of the guilt of the accused for the offence under Section 138 of the Negotiable Instruments Act by the learned Judicial Magistrate, Fast Track Court No. II, based on the materials available on record is fair and proper? - HELD THAT:- It is to be noted that in the cases filed for dishonour of cheques, the liability fastened on the holder of the cheque is not akin to the liability to prove a civil claim. It is sufficient if the complainant could show prima facie materials which would make his case probable. Moreover, when the drawer of the cheques does not dispute his signatures on the cheques, the initial presumption as contemplated under Sections 118 and 139 of the Negotiable Instruments Act would be in favour of the holder of the cheques. Though it is always open to the petitioner/accused to refute the initial presumption by way of producing rebuttal evidence, such rebuttal proof should be such a standard that it should tilt the preponderance of probability in his favour. In the case in hand, the petitioner/accused did not come to the box and subject himself for cross-examination with regard to the allegation he made about the short delivery of goods. There is also no explanation from the side of the petitioner as to why he did not elaborate on this aspect when he sent his reply notice. Moreover, the respondent/complainant has proved the liability of the petitioner not only through his invoices but also through accounts maintained by him. So in the above background of facts and evidence, the preponderance of probability is still found to be in favour of the respondent/complainant and the petitioner/accused did not refute the same by way of any strong rebuttal proof. Since the delivery of goods were made through several loads, it cannot be concluded that the respondent/complainant has not delivered the goods in full. The probability of the delivery of goods as found in Ex. P6 series is more probable in the light of the fact that the respective tax was paid fully by the complainant and the respective papers were also filed by the petitioner/accused to the Commercial Tax Department, in connection with the alleged transaction of goods. This Criminal Revision Case is dismissed.
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