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2019 (9) TMI 785 - HC - Indian LawsDishonor of cheque - insufficiency of funds - failure to repay borrowed amount - Section 138 of the Negotiable Instruments Act - acquittal of accused - HELD THAT:- In the case at hand, though probable defence with regard to capacity of the complainant to lend money appears to have been taken very casually because, if statement of the accused recorded under S.313 CrPC as well as suggestions put to the complainant during his cross-examination are perused, same clearly suggest that the main defence of the accused is/was that she issued cheque as security, but even if such defence is tested on the basis of evidence led on record by respective parties, same deserves outright rejection - In the case at hand, careful perusal of the complaint filed by complainant under S.138 clearly suggests that he set up a case that he, after having arranged money from his friends namely Raju and Stephen Deen, gave it to the accused. There is no suggestion with regard to capacity of complainant to lend money, who otherwise is a Government employee. Complainant’s assertion made in examination-in-chief that he is working as a Carpenter in MES at Jutogh and drawing salary of ₹ 33,000/- per month, remained totally un-shattered, because at no point of time, suggestion, if any, qua aforesaid aspect of the matter came to be put to the complainant. Hon'ble Apex Court in Rohitbhai Jivanlal Patel vs. State of Gujarat & Anr, [2019 (3) TMI 769 - SUPREME COURT], has held that in view of statutory presumptions as contemplated under Ss.118 and 139 of the Act, onus is shifted upon the accused and unless accused discharges said onus by leading evidence on record as to show preponderance of probabilities tilting in his favour, complainant’s case cannot be disbelieved for want of evidence regarding source of funds for advancing as loan to the accused. In the case at hand, accused has not been able to rebut the statutory presumption under Ss.118 and 139 of the Act in favour of holder of cheque i.e. complainant and as such, there appears to be no illegality or infirmity in the judgments/order of conviction and sentence passed by learned Courts below - All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to interfere with the judgments/order of conviction and sentence recorded by learned Courts below, as such, same deserve to be upheld. Petition dismissed.
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