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2022 (3) TMI 1402 - HC - Indian LawsDishonor of Cheque - discharge of legally recoverable debt or liability or not - acquittal of the accused - proof of offence - rebuttal of the presumption - burden to rebut the presumptions - HELD THAT:- Since the accused admitted his signature on the cheque and that the cheque pertains to his account, the trial Court also held that presumption under Sections 118 and 139 of the Act arises regarding passing of the consideration and cheque being issued towards legally recoverable debt. Then the burden shifted to the accused to rebut that presumption. It was for the accused to probabilise his defence that the cheque was issued in 2000 and that was misused. The said defence was vehemently denied by the complainant. The complainant claims that the accused committed default in payment of the loan. It was not the case of the accused himself that the loan was prematurely recalled or that was not due as on the date of the issuance of the cheque or presentation of the cheque as the case was denial of availment of loan itself. However, the Court itself made out the case of such premature recalling of the loan to the accused. It was not the defence of the accused that the he had paid installments which had fallen due. On admitting the cheque, the accused has to probabilise the defence and to establish that. It was not the case of the accused that he had paid the installments which had fallen due, therefore there was no reason to recall the entire loan. Therefore the findings of the trial Court regarding the accused probabilizing his defence on such ground are unsustainable. Therefore it can be held that this Court is not totally barred from receiving such documents at the Appellate stage if the Appellate Court finds additional evidence to be necessary. Section 391 of Cr.P.C. authorizes the Appellate Court on recording its reasons either to take such evidence itself or direct the learned Magistrate to take such evidence. 30 The loan borrowed in the case is huge amount of Rs.50,00,000/-. The complainant is a public institution where the money of the public is at stake. The records show that the accused having borrowed the money, obstructed the complainant’s officials when they sought to recover the same, thereby driving the complainant party to file the complaints found in Exs.P14 to P17. This Court finds it necessary in the interest of justice to permit the complainant to adduce additional evidence. At the same time, the accused/respondent shall have opportunity to meet those documents with regard to his contentions that those documents are concocted one. That exercise can be done by remanding the matter to the trial Court to record the evidence regarding the documents sought to be produced before this Court and give findings only with regard to maintainability of the complaint for want of authorization - Appeal allowed in part.
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