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2021 (6) TMI 464 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - legally recoverable debt or not - failure to probablise the defence - HELD THAT:- Since the materials supplied was of inferior quality, the accused suffered loss and therefore, he requested for return of the advance amount and also the cheque-Ex.P.1. The complainant had not returned the cheque instead, he has misused the same. Therefore, there was no legally recoverable debt and hence the accused has not committed any offence punishable under Section 138 of the N.I. Act. During cross-examination, it is suggested to the witness that he has not produced any letter of authority to represent the complainant partnership firm. However, P.W.1 stated that he was authorized to represent the complainant-partnership firm and later he produced Ex.P.293, which is the authorization letter issued by all the partners in favour of P.W.1. Therefore, the contention of the learned counsel for the petitioner that the complainant is not represented properly does not hold any water. When the complainant is successful in proving that the accused has issued the cheque in question towards legally recoverable debt, the presumption under Sections 118 and 139 of the N.I. Act comes into operation. It is for the accused to rebut these presumptions by placing cogent materials in support of his defence. In the present case, even though the accused has taken the defence as stated above, he failed to probabalise the same. It is true that the burden of proof on the accused to rebut the presumption is only of preponderance of probabilities and not proof beyond reasonable doubt - But even then the accused has failed to probabalise his defence and therefore, the complainant is successful in proving the guilt of the accused beyond reasonable doubt. Revision petition dismissed.
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