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2021 (7) TMI 739 - HC - Indian LawsDishonor of Cheque - funds insufficient - presumption about the existence of legally enforceable debt - rebuttal presumption or not - preponderance of probability - material contradictions in the case of the complainant - HELD THAT:- The complainant in his complaint, as well in his examination-in-chief as PW-1 has stated that the loan was given by him to the accused in the month of July 2012. He has not given any specific day of the month as to the date on which the alleged loan was given. The month is also stated to be July of the year 2012. However, the very same witness in his cross-examination has stated that he lent the money to the accused on 06.08.2012. That means, the complainant was clearly aware the exact date on which the loan is said to have been given by him to the accused. However, for the reasons best known to him, neither in his complaint nor in his evidence as PW-1 in his examination-in-chief has mentioned the exact date of the alleged loan - regarding the date of alleged loan transaction, the complainant has shown a greater variation in his complaint and in his evidence. No doubt, a presumption regarding legally enforceable debt is formed in favour of the accused as observed above. However, the said presumption is rebuttable. For rebutting the said presumption, it is not necessary for the accused either to enter the witness box and to lead his evidence or examine any witness or even to produce any documentary proof in his support. Suffice for him to make a case of preponderance of probabilities in his favour to rebut the presumption formed in favour of the complainant under Section 139 of N.I. Act - The material contradiction that has been brought out in the case of the complainant would dilute the case of the complainant, at the same time, make out a preponderance of probabilities in favour of the accused. This aspect both the trial Court, as well as the Sessions Judge's Court have failed to observe. The impugned judgments to be considered as perverse and suffering with infirmity - Petition allowed.
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