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2018 (1) TMI 1714 - HC - Indian LawsDishonor of Cheque - rebuttal of statutory presumption under section 118(a) and 139 of NI Act - preponderance of probabilities - HELD THAT:- In RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT], the Hon'ble Apex Court, while holding that since the signature on the cheque is not disputed, the statutory presumption under Section 139 of the Act is activated, which the accused could not rebut since the defence of lost cheque was not probable, observed that Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant. Whether the accused has brought on record material which would persuade this Court to believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man - If the conscious of this Court is satisfied that the accused has discharged the initial onus of proof by demonstrating that the existence of consideration was improbable or doubtful, it is axiomatic that the onus would shift to the complainant to prove the existence of legally enforceable debt or liability, as a matter of fact. In such a scenario, the accused would have rebutted the statutory presumption under section 118(a) and 139 of the Act and the burden of proving the existence of legally enforceable debt or liability would shift on the complainant. It is the case of the complainant that the loan was extended for a short duration of a month. The admission that the complainant did not maintain accounts of the transaction and the inference drawn by the learned Magistrate that the transaction was not reflected in the income tax returns, in the factual matrix, is not sufficient to render the existence of legally enforceable debt or liability doubtful - since the statutory rebuttal which concededly is activated, is not rebutted by the accused by evidence showing that the existence of defence is probable, the evidence must be appreciated on the anvil of the statutory presumption in favour of the complainant that the cheque was issued towards discharge of an existing debt or liability which is legally enforceable. The judgment and order impugned suffers from an error of law in appreciating the import and implication of the statutory presumption under section 139 of the Act - accused is convicted for offence punishable under section 138 of Negotiable Instruments Act and is sentenced to suffer simple imprisonment for three months and to pay compensation of Rs. 2,00,000/- to the complainant under section 357(3) of the Code of Criminal Procedure - Appeal allowed.
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