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2021 (12) TMI 1005 - HC - Indian LawsDishonor of Cheque - Discharge of legally enforceable debt or not - actual person to whom the cheque is issued - acquittal of the accused - rebuttal of presumption - cross-examination of witnesses - HELD THAT:- Perusing the material available on record vis-à-vis reasoning assigned by learned Courts below, while holding accused guilty of having committed offence punishable under 138 of the act, this court finds it difficult to agree with learned counsel for the petitioner that the learned courts below have failed to appreciate the evidence in right perspective rather, close scrutiny of evidence and pleadings clearly reveals that both learned courts below have dealt with each and every aspect of the matter meticulously and no scope is left for interference by this court - Interestingly, in the case at hand, there is no denial on the part of accused with regard to issuance of cheque as well as his signatures thereupon. He has categorically stated in the statement recorded under S. 313 CrPC, that he had not issued cheque in question to the complainant but to his son-in-law, who further gave it to the complainant as security. Once there is no denial of issuance of cheque and signatures thereupon, presumption as available under Ss. 118 and 139 comes into play. Section 118 and 139 of the Act clearly provide that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability - True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant. The Hon'ble Apex Court in M/S LAXMI DYECHEM VERSUS STATE OF GUJARAT & ORS. [2012 (12) TMI 106 - SUPREME COURT], has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. In the case at hand, complainant with a view to prove his case examined himself as CW-1 and successfully proved on record contents of the complaint. Cross-examination conducted upon this witness nowhere suggests that the opposite party was able to extract anything contrary to what he stated in his examination-in-chief - witness admitted that the house of accused is situate near Kali Bari Temple, Shimla. While admitting the suggestion that he has not cited his wife as witness, he feigned ignorance that the cheque has been filled in two different inks. This witness self-stated that the cheque was filled in by the accused himself. This witness denied the suggestion that he has misused the cheque. Careful perusal of the statement of the accused clearly reveals that he has not denied issuance of cheque and his signatures thereupon, rather, his simple defence is that the cheque in question was issued to one Rajan, his son-in-law, who was to further hand over the cheque to someone from whom he had taken ₹ 25,000/-. There is no explanation that in case cheque was issued to Rajan, how it reached complainant. It is not the case of the accused that Rajan, had borrowed ₹ 25,000/- from the complainant and he had handed over cheque to the complainant as security. The present revision petition is dismissed being devoid of any merit - decided against petitioner.
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