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2021 (5) TMI 975 - HC - Indian LawsDishonor of Cheque - legally enforceable debt - financial incapacity to repay the debt - Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court? - service of notice - HELD THAT:- In the instant case, the notice has been sent to the correct address of the accused and since he has refused the same, the Registered Post Acknowledgement Due was returned to the sender and also since the accused did not come forward to make good the amount of the cheque immediately after he coming to know about the institution of the criminal case, the argument of the learned counsel for the petitioner that there is no service of notice upon the accused under Section 138 of N.I. Act, is not acceptable. The financial capacity of the complainant to lend money to the accused also can be gathered from the evidence. As such, the other point of argument of learned counsel for the petitioner on that aspect is not convincing - the entire defence of the accused about denial of the loan transaction has just confined to a mere oral denial made to PW-1. However, the same is not sufficient to rebut the presumption which has been formed in favour of the complainant under Section 139 of N.I. Act regarding the existence of legally enforceable debt. The trial Court for the proven guilt of the accused for the offence punishable under Section 138 of N.I. Act, had sentenced the accused to undergo simple imprisonment for a period of six months and to pay a fine of ₹ 5,19,300/-, in default of payment of fine, to undergo simple imprisonment for a period of six months, in which, a sum of ₹ 5,14,300/- was ordered to be paid to the complainant. The Sessions Judge's Court in Criminal Appeal No. 69/2013 has confirmed the order on sentence. Criminal Revision Petition is partly allowed.
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