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2020 (8) TMI 684 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - legally enforceable debt - rebuttal of presumption - Both the trial court as well as the appellate court held that the proof of hire purchase agreement is not sufficient to rebut the presumption under Section 138 of the N.I.Act - HELD THAT:- A negotiable instrument including a cheque carries presumption of consideration in terms of Section 118A and Section 139 of the N.I.Act. Once the complainant has succeeded in proving that the accused executed the cheque, then the onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the N.I.Act. In this case, the accused has failed to raise a probable defence which creates doubt with regard to the existence of a debt or liability. In the light of the evidence adduced, this Court is perfectly in agreement with the findings of the trial court as well as the appellate court that the presumption mandated by Section 138 of the N.I.Act has not been rebutted, in accordance with law. Revision Petition is dismissed confirming the concurrent conviction and sentence imposed against the revision petitioner by the trial court as well as the appellate court. During the pendency of the proceeding, this Court called for a report from the Sub Inspector of Police, Vithura Police Station to ensure the presence of the revision petitioner before this court - The accused is sentenced to pay a fine of ₹ 2,50,000/- and in default to pay the fine amount, the accused shall undergo sentence of simple imprisonment for a period of three months. The fine amount if realised, the same shall be released to the complainant under Section 357(1) of Cr.P.C. - Criminal Revision Petition is allowed in part.
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