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2019 (1) TMI 1495 - BOMBAY HIGH COURTDishonor of Cheque - insufficiency of funds - Section 138 of Negotiable Instruments Act - discharge of a legally enforceable debt or liability - rebuttal of presumption - Held that:- It is clear that explanation to Section 138 leaves no manner of doubt that to attract an offence under section 138 of the NI Act, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. Thus, considering the admissions given by the complainant, it cannot be said positively that the said cheque has been issued by the applicant/accused for the discharge of any legally enforceable debt or liability as on the date of issuance of the cheque. It is well settled that presumption under section 118 read with section 139 of the N.I. Act is rebuttable presumption and the accused can do so on preponderance of probability and also on the basis of the cross-examination of the complainant and his witnesses, if any - In the instant case, the applicant/accused has discharged the said burden and rebutted the presumption drawn under section 118 read with section 139 of the Act. Thus, the evidence is short of proving that there exists a legally enforceable debt or liability for which the applicant/accused has given the said cheque. There was no reason for the applicant/accused to issue a cheque of his personal liability in the capacity as a Proprietor of Hindustan Traders. The complainant has not bothered to explain the same. Thus, the applicant/accused is entitled for the benefit of doubt. Criminal Revision Application is allowed.
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