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2021 (8) TMI 826 - HC - Indian LawsDishonor of Cheque - sufficient material to proceed against the accused, present or not - failure to prove the cheque - legally enforceable debt or not - acquittal of the accused - rebuttal of presumption - preponderance of probabilities - HELD THAT:- The complainant has not denied the fact that accused is financially sound person. He has also not denied that accused entrusted him the furniture work and it is the specific contention of the accused that, initially the cheque was issued for ₹ 2,50,000/- towards furniture work executed by the complainant and subsequently, as the work was only worth of ₹ 1,50,000/-, separate cheque was issued with a request to return other cheque for ₹ 2,50,000/-. Admittedly, the cheque for ₹ 1,50,000/- was encashed by the complainant. The complainant initially denied that payment of ₹ 1,50,000/- towards furniture work, but later tried to improve his version by claiming that it was pertaining to repayment of earlier loan. When there was earlier loan of ₹ 1,50,000/- due as on April 2009, it is hard to accept that he has again advanced hand loan of ₹ 2,50,000/- to the accused. He has not given any explanation as to when this amount of ₹ 1,50,000/- was advanced. Admittedly, if the version of the complainant is taken that repayment of ₹ 1,50,000/- pertaining to earlier hand loan, he would have referred it in the complaint and in April 2009, when there was due of ₹ 1,50,000/- in respect of earlier hand loan, he would not have ventured to advance further hand loan of ₹ 2,50,000/-. The accused need not rebut the presumption on the principles of beyond all reasonable doubt, but he can rebut the presumption only on the basis of preponderance of probabilities. Looking into the rival contentions and considering the evidence of P.Ws.1 and 2, it is evident that their evidence is not trustworthy and the defence of the accused is more probable rather than the claim made by the complainant. Hence, the presumption under Section 139 of N.I.Act is rebutted by the accused. Then again burden shifts on the complainant to establish the existence of legally enforceable debt, but that is not forthcoming. There is no doubt that initially there is a statutory presumption and reverse onus is on the accused - The accused by leading cogent evidence and by cross-examining P.Ws.1 and 2 has rebutted the presumption available in favour of the complainant/prosecution under Section 139 of N.I.Act. Hence, again onus shifts on the complainant to establish the existence of legally enforceable debt, but he has not placed any material in this regard. The complainant has failed to establish the existence of legally enforceable debt and accused rebutted the initial statutory presumption available in favour of the complainant. The trial court after marshalling oral and documentary evidence has come to a proper conclusion regarding complainant having failed to discharge regarding advancing hand loan and existence of legally enforceable debt. Hence, the trial court has rightly acquitted the accused and the judgment of acquittal passed by the trial court is neither capricious, erroneous nor suffers from any illegality. Appeal dismissed.
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