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2021 (2) TMI 151 - HC - Indian LawsDishonor of Cheque - Insufficiency of funds - payment was not received and a complaint was filed under Section 138 of the N.I. Act before the court of the Metropolitan Magistrate - offences punishable under section 138 of Negotiable Act, 1881 - Section 143(1) (Provisio) of N.I. Act read with Section 357(1)(3) of Cr.P.C. - HELD THAT:- Section 118 of the N.I. Act raises a presumption that a cheque is issued for consideration until the contrary is proved. It is well settled position that the initial burden in this regard lies on the accused to prove the non-existence of debt by bringing on record such facts and circumstances which would lead the court to believe the non-existence of debt either by direct evidence or by preponderance of probabilities - In the present case other than mere ipse dixit of the petitioner that there was no debt due and payable nothing is on record to show that the cheques were not issued for discharge of liability for the bus. The second bus bearing registration No. DL 1 PA 5798 stood in the name of the accused. There is nothing to show that the liability for the first bus bearing registration No. DL1 P 7279 has been discharged. The purpose of introducing Section 138 of the N.I. Act was to bring sanctity in commercial transactions. Two courts below have looked into the entire records of the case and have come to the conclusion that the cheques have been given in discharge of debt. The petitioner only seeks to take advantage of the fact that the respondent did not produce the books of accounts to rebut the initial presumption which was for the petitioner to show that the amount of loan taken by him and the amount that should be repaid in order to discharge the initial burden and the petitioner has failed to discharge the initial onus of proof. The learned counsel for the petitioner has not been able to demonstrate that the findings of the courts below are perverse. The fact that the respondent did not file the books of accounts is not fatal to the case of the respondent. It was open to the petitioner to produce his books of accounts to rebut the presumption and bring out a prima facie case that there was no debt due and payable on the date the cheques were dishonoured. The petitioner has not been able to discharge the initial burden on him to rebut the presumption under Section 118 of the N.I. Act. The fact that the petitioner took financial assistance from the respondent is admitted. The petitioner has not been able to show as to how there was no subsisting debt on the date when the cheques were dishonoured due to insufficiency of funds - No case has been made out which would warrant interference under Section 397/401 Cr.P.C. The revision petition is dismissed.
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