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2021 (10) TMI 1359 - HC - Indian LawsDishonor of Cheque - insufficient funds - existing and enforceable debt or not - rebuttal of statutory presumption under section 139 of NI Act - burden to prove - HELD THAT:- The burden on the accused is to make out a probable defence. The accused need not step into the witness box or adduce direct evidence. It would suffice if the accused is in a position to create a reasonable doubt that the version of the complainant is false. In the factual matrix, the accused has more than succeeded in rebutting the presumption. Except a bald statement in the complaint that the disputed cheque was issued towards payment of unpaid amount, there is no disclosure whatsoever as to when was the coal supplied, what was the quantity of the coal supplied, what was the amount received from the accused and what amount is unpaid. The complainant did not adduce any documentary evidence to show that he supplied coal to the accused, at any point in time. While the complainant asserted that the outstanding is reflected in the balance sheet, the balance sheet is not produced on record - in cases where the allegation is that certain goods were supplied and the cheque was issued towards payment of the consideration, it would be hazardous to convict only on the basis of the presumption under section 139 of the Act in the absence of any material, and which material ordinarily would be expected to be in the complainant's possession and control, to show that goods were as a fact supplied to the accused. While dealing with an appeal against acquittal, the Court must bear in mind that the presumption of innocence is only strengthened by the acquittal and if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should be slow to reverse a judgment of acquittal. Appeal dismissed.
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