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2021 (9) TMI 40 - HC - Indian LawsDishonor of cheque - legally enforceable debt - rebuttal of presumption - preponderance of probabilities - summary of the case of the complainant in the Trial Court was that, the accused was known to him for the previous ten years to the date of the complaint and both of them were friends - HELD THAT:- Since the accused is expecting the complainant to produce some documents to prove the loan in question which is for a sum of ₹ 3,00,000/-, equally well, the accused is also expected to retain certain documents towards the alleged repayment of the previous alleged loan of ₹ 50,000/-. However, since it is the accused who has taken a contention that he has taken a previous loan from the complainant, which is ₹ 50,000/- and has repaid the said loan and also has taken a contention that the cheque in question was given as a security at that point of time, then, it is for the accused to produce cogent evidence, either oral or documentary and to make out a case at least on the case of preponderance of probabilities. However, the accused, except his statement in the form of suggestion to PW-1 and through his evidence as DW-1, has not produced any corroborative material or evidence - the sole defence of the accused that the cheque in question was given to the complainant as a security in 2006 and the same was misused by the complainant in the year 2008, does not stand established. Added to this, admittedly, the accused has not taken any further action for the recovery of the said cheque from the alleged date of repayment, till the said cheque is alleged to have been misused by the complainant which was in the year 2008. No legal notice has been admittedly given to the complainant from the accused's side. No action for recovery, including lodging of any Police complaint has been initiated by him - the contention of the learned counsel for the petitioner/accused that, the accused has issued the cheque in question as a security to the complainant towards an earlier loan transaction in the year 2006, does not gain support to believe the same. Both the Trial Court as well as the Sessions Judge's Court have rightly held that the complainant has proved the alleged guilt against the accused, whereas, the accused could not able to make out a case at least on preponderance of probabilities. Accordingly, the Trial Court has proceeded to convict the accused for the offence punishable under Section 138 of the N.I. Act, which was further confirmed by the learned Sessions Judge's Court. Since the said finding of the Trial Court and the Sessions Judge's Court has led them to convict the accused and also the order on sentence pronounced by the Trial Court, which is proportionate to the gravity of the proven guilt against the accused, the impugned judgments cannot be called as perverse, erroneous or illegal, warranting any interference at the hands of this Court. The Criminal Revision Petition stands dismissed as devoid of any merit.
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