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2021 (3) TMI 569 - HC - Indian LawsDishonor of Cheque - rebuttal of presumption - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- Once execution of the promissory note is admitted, or proved, the presumption under Section 118(a) of the Act would arise that it is supported by consideration. It is a rebuttable presumption. The accused can prove non-existence of consideration by raising a probable defence. If he proves to have discharged the initial onus of proof that the existence of consideration was improbable or doubtful, the onus shifts back to the complainant, who will be obliged to prove it as a matter of fact, and on his failure to discharge the burden, he will be disentitled to get a relief. The trial court is required to start with statutory presumption until the contrary is proved that the cheque was issued or drawn for consideration and that the complainant had received it for the discharge of existing debt or liability. Then the burden is on the accused, in view of the statutory presumption, to rebut the presumption by leading an adequate and satisfactory evidence to substantiate his contention in defence to the prosecution. Although it is not necessary for the accused to enter the witness box, the burden of proof is required to be discharged by adducing satisfactory evidence to prove that the cheque in question was not issued for discharge of any legally enforceable debt. Merely for the reason that he did not adduce any evidence to prove a negative fact, no adverse inference can be drawn against him. The degree of proof expected from the accused is not as rigorous as that of the complainant. He can discharge his onus by making dents in the case of the complainant. Here, it seems that that has been attempted by the 1st respondent. Even though the financial capacity of the appellant stands disputed by the 1st respondent, the appellant has not taken care in adducing evidence supporting his ability to pay so much money. The complainant is expected to prove his case to the hilt. He cannot take advantage of the failure on the part of the accused respondent. This Court is not persuaded to interfere with the finding of the trial court, which is liable to be confirmed - Appeal dismissed.
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