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2021 (11) TMI 652 - HC - Indian LawsDishonor of Cheque - misuse and misutilization of the cheque for filing the complaint - denial of legal right of appellant - legally enforceable debt or not - rebuttal of presumption or not - HELD THAT:- The learned Trial Court rightly appreciated the fact that if the complainant has not returned the amount of ₹ 4 lakh of the accused and has not even given the finance that was required, no prudent person would have waited without taking any action. It is admitted fact that he neither responded to the notice nor filed any complaint or taken any action against the complainant herein. The accused failed to substantiate wherefrom he brought the amount of ₹ 4 lakhs. As against this, the complainant through his passbook substantiated withdrawal of amount from the bank for such payment. The learned Trial Court also rightly appreciated the fact that accused admitted signature on the disputed cheque as well as on the receipt. As per opinion of handwriting expert, the contents written in the body of cheque or receipt is not in the handwriting of the complainant. As far as the finding recorded by the Appellate Court that complainant is an unregistered moneylender is concerned, the same is totally erroneous. None of the witnesses examined by the accused has deposed that they obtained loan on interest or complainant advanced money on interest. On the contrary, DW- 1 is silent about moneylending business by the complainant - it appears that as conviction is there under NI Act, the said amount advanced by the complainant is held as legally enforceable debt. If the complainant is not earning any additional amount toward interest over the amount advanced to these witnesses, this finding of learned Appellate Court that he is unregistered moneylender is totally erroneous. The presumption under section 139 is a rebuttable presumption and the onus is on the accused who raised the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. Where the learned Appellate court disbelieved the defence, no question of rebuttal by the accused would arise. So far as showing the said amount in income tax returns is concerned, as the amount is duly reflecting in bank account, the same will be taken care of by the Income Tax Department and consequences/procedure will follow as per provisions of law. For that reason accused cannot be absolved, specifically when both the learned lower courts disbelieved his defence. The order passed by the learned JMFC is well founded and the conclusions arrived at are on proper appreciation of evidence. As such, the order passed by the learned Appellate Court is liable to be set aside - appeal allowed - decided in favor of appellant.
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