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2022 (1) TMI 498 - HC - Indian LawsDishonor of Cheque - preponderance of probabilities - legally enforceable debt or not - acquittal of the accused - rebuttal of presumption - Whether the judgment of the learned Sessions Judge in acquitting the accused from the offence under section 138 of the Negotiable Instruments Act basing on the materials available on record is fair and proper? - HELD THAT:- The standard of rebuttal proof that need to be produced by the accuses is not necessarily strict proof beyond reasonable doubt. It is sufficient if the probabilities are proved through preponderance. Hence, the accused need not necessarily get into the box and subject himself for examination or produce any records of his own. And it is sufficient that he could bring out the improbable facts and circumstances from the case of the complainant. Because the object of punishment contemplated u/s 138 N.I. Act for dishonour of cheque is for improving the creditability of the Negotiable Instruments exchanged during commercial transactions and to ensure business viability and not the deterance of criminals. Though, it might be an exaggeration on the part of the accused to state that the complainant had stolen away her cheques when she came come to her house in order to see her sick husband, there are materials to probablise her defence that the impugned cheque was not supported by consideration and it was not given for discharging a legally enforceable liability or debt - A person, who already aggrieved due to non payment of a money-due by a debtor, would not dare to give an another enhanced loan to the same debtor and that too without any security. This is especially clear from the fact established by the defence through Ex.D2/receipt that after the sale transaction between the complainant and the accused, the accused did not owe any money to her. The appellate Court has evaluated the facts and circumstances and other materials available in this case and gave due weight to the preponderance of probabilities established by the defence. Since the case of the defence is more probable and strong enough to improbabilise the case of the complainant, it has chosen to reverse the judgement of the Trial Court - Appeal dismissed.
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