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2022 (1) TMI 53 - HC - Indian LawsDishonor of Cheque - insufficient funds - legally enforceable debt or not - preponderance of probabilities - validity of conviction and sentence of the accused for the offence under Section 255(2) Cr.P.C., and 357(3) Cr.P.C. basing on the materials available on record - HELD THAT:- In the case in hand, the petitioner/accused has consistently stated that the complainant did not have sufficient funds and it is not possible or probable to presume that he had lent the huge sum to the accused. Unless the cheques which were returned for 'insufficient funds' were proved to have been issued for legally enforceable debt, the action taken under Section 138 of N.I.Act will fail. Since the complainant did not prove that he had procured funds from his alleged friends and relatives by way of examining them, that would shift the preponderance of probabilities in favour of the accused. So it is unbelievable that the complainant had lent a huge sum in a short span of 40 days and that too to a person like the accused who is his casual acquaintance. Since the Courts below have not properly appreciated the preponderance of probabilities available in favour of the petitioner/accused, from the short falling evidence of the complainant, this case is deemed fit to be interference - the Criminal Revision Case is allowed.
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