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2021 (2) TMI 199 - HC - Indian LawsDishonor of Cheque - acquittal of the accused - rebuttal of presumption - defence of the accused-respondent is that he had not borrowed any amount from the complainant-appellant and, therefore, he had no debt or liability to repay any amount to the appellant herein - whether the complainant-appellant has been able to discharge his liability to establish the presumption under Section 139 of the N.I. Act? - HELD THAT:- In the instant case, the specific case of the complainant is that he and the accused had worked jointly under the license of one Suman Bhattacharjee in executing a Government work which leads to the liability of the accused. According to complainant, he had an oral partnership agreement and the profit and loss was to be determined at 60:40 ratio and the investment of the complainant would be 40 % as it was decided by them that the complainant would supervise the works and also collect the materials from the market on credit. Naturally, the financial bills would be raised in the name of Suman Bhattacharjee and the payment would be received by Suman Bhattacharjee. Needless to say, it means that Suman Bhattacharjee is the person in whose name the work was executed and the bills also were raised in favour of Suman Bhattacharjee. The said Shri Bhattacharjee would naturally distribute the shares of the complainant and the accused as agreed as per the oral partnership agreement, if the facts as adverted by the complainant is believed. It is further surfaced from the examination-in-chief adduced by the complainant that though they entered into an agreement on 60:40 ratio but the complainant had stated that they deposited security money to the tune of ₹ 10,00,000/- out of which he paid ₹ 5,00,000/- against security deposit that is in equal share to that of the accused. The complainant did not anywhere mention about the total estimated cost of work which they executed in the name of Suman Bhattacharjee. That apart, it appears hard to digest for this Court that when the complainant had invested by way of depositing 50 % of the security deposit equal to that of the accused, then, why the complainant and the accused had decided to invest at 60:40 ratio. Ironically, Suman Bhattacharjee in whose name the work was executed was not cited as witness by the complainant to substantiate the statement of the complainant that the work was executed in the name of Suman Bhattacharjee and bills were raised in the name of Suman Bhattacharjee and to substantiate this important aspect that Suman Bhattacharjee had paid the entire amount out of the said bills to the complainant and the accused. Thus, failure of the complainant to produce any proof either oral or documentary relating to the joint work executed by him with the accused not only create a shadow of doubt regarding his case but also leads to an adverse inference against him under Section 114(g) of the Indian Evidence Act - there are no such materials wherefrom it can be garnered that the complainant was able to establish the source of his fund to invest his share of 50 % against the security deposit of ₹ 10 lakhs in total and further investment at the ratio of 40 % for the execution of the works. Thus, existence of legally enforceable/recoverable debt is not a subject of presumption under Section 139 of the N.I. Act. This provision only raises a presumption in favour of the holder of the cheque that the same has been issued in discharge of any debt or any other liability. The impugned judgment of the Trial Court acquitting the accused-respondent from the charge levelled against him is affirmed and upheld - appeal dismissed.
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