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2022 (1) TMI 1285 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or not - rebuttal of presumption under Section 139 of the N.I.Act - burden to prove - Power of review - whether this is a case where the Appellate Court is required to exercise the discretion because of miscarriage of justice in case of acquittal, whether it enjoys full power of review evidence? - whether the notice issued is invalid in wake of the part payment made by the respondent as the payment sought is in excess of the amount due? - HELD THAT:- The Court is empowered to exercise appellate jurisdiction of reverting judgment and need not send the matter for retrial, by considering the evidence by proper weightage and consideration. In the instant case also, as an Appellate Court, this Court can consider these parameters and arrive at consideration other than what the Trial Court did. What is vital to be considered here is that in a prosecution under the NI Act, once the cheque is dishonoured, demand of notice within a stipulated time period is must and at the time of trial, the statute has provided presumption under the law and concept of reverse burden. In case of MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. [2006 (7) TMI 576 - SUPREME COURT], the Court considering the issue of presumption under the NI Act held that the Court needs to presume the negotiable instrument for consideration unless existence of consideration is disproved. It has further held that unless, on consideration of matter before it, the Court either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. The Court held that the initial burden of proof is on the accused to rebut the said prosecutions by raising a probable defence. The burden of proof on the accused is not heavy. It need not disprove the prosecution’s case in its entirety beyond reasonable doubt. As the essential ingredient of Section 138 are of the drawing of the cheque by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, on presentation of the cheque by the payee or the holder in due course, the return of the cheque unpaid by the drawee of the bank for want of insufficient fund obligates issuance of a written notice to the drawer of the cheque within 15 days. Failure of the drawer to make the payment to the payee would amount to his not having fulfilled the liability of the drawer of the cheque as to the amount of the money and as in the matter on hand, the part payment had already been made, the Trial Court rightly held that the part payment made by the respondent ought to have been reflected in the notice issued by the appellant - In the instant case, as the amount of cheque is higher than the amount which actually was due to the appellant, the Court has chosen to hold that the statutory notice issued for demand of return of cheque was not a valid notice and an omnibus notice for not having recognized the payment made. This appeal deserves no indulgence at the hands of this Court.
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