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2021 (11) TMI 545 - HC - Indian LawsDishonor of Cheque - existence of legally enforceable debt or not - defense of the accused/revision petitioner is that she had no transaction with the complainant at any point of time and cheque was issued to one Rajiv and in this regard, she has placed reliance on Ex.D1 - rebuttal of statutory presumption - HELD THAT:- The complainant has not disputed the cheque-Ex.P1 and her signature. Hence, statutory presumption under Section 139 of N.I. Act is in favour of the complainant. The accused is required to rebut the statutory presumption by leading the cogent evidence on the basis of preponderance of probability. But, except asserting the transaction between herself and Rajiv, no other documents have been produced by the accused. This transaction does not establish that the said cheque was taken by the complainant and very interestingly, after receipt of the legal notice, the accused has not choosen to reply and no explanation is offered - the cross-examination of D.W. 1 itself disclose that she is already convicted for the offences punishable under Section 138 of N.I. Act in a different case. She has also admitted that Rajiv has also lodged a complaint against her under Section 138 of N.I. Act as per Ex.D10. Hence, the defense raised by the accused is short of proving her case that the cheque has not been issued towards discharge of legally enforceable debt so as to rebut the statutory presumption in favour of complainant. The other ground urged by the learned counsel that in the complaint there is a specific allegation that an amount of ₹ 5,00,000/- was advanced as a hand loan but in the evidence, it is elicited that it was in respect of payment towards the house warming ceremony, wherein, the complainant has taken contract and he paid the expenses in this regard to labours, but that does not go to the root of the case to suspect the case of the complainant. The accused has not rebutted the presumption available in favour of the complainant. The accused has not made out any grounds for admitting the revision for hearing on merits. The accused/revision petitioner has already suffered two concurrent findings of conviction in both the Courts below and both the Courts have appreciated the evidence on record in detail and conviction order passed by the trial Court and confirmed by the Appellate Court cannot be said to be erroneous or arbitrary so as to call for any interference by this Court. Petition dismissed.
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