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2022 (1) TMI 1005 - HC - Indian LawsDishonor of Cheque - acquittal of the accused - presumption both under sections 118 and 139 of the Negotiable Instruments Act - rebuttal of presumption - burden upon the appellant to establish the offence without taking into consideration of the impact of presumption, or not - HELD THAT:- It is true that in the decision the Hon'ble Supreme Court in RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT] observed about the existence of a reverse onus under Section 139 of the Act once execution of the cheque is proved. However, the said presumption comes into play only when the execution of the cheque is proved. In this case, the execution of cheque is specifically denied by the 1st respondent. He has a case that the cheque was lost by him in the year 2007 while he was working at FCI, Kozhikode. It is an admitted fact that, at the relevant time, the appellant was also working there. The evidence of DW1 coupled with Ext. C2 document would reveal that as early as on 24.5.2010, the 1st respondent had issued a stop memo in respect of a cheque in question. The issuance of cheque even according to the appellant is almost a year after the said date. When all these aspects are taken into consideration, the execution of the cheque itself is in doubt. Even if it is assumed for argument for the sake that, the aforesaid cheque was indeed issued by the 1st respondent, even then the evidence adduced by the appellant would indicate a probable case which will have the impact of rebutting the presumption available under Section 139 of the Negotiable Instruments Act - if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. In this case, the factual situation pointed out by the appellant contains several discrepancies mentioned above which is sufficient to raise a probable defence so as to create doubts as to the existence of legally enforceable debt or liability. The discrepancies mentioned, cannot be treated as immaterial or insignificant. Even if the evidence as a whole is taken into consideration, it contains several loop-holes or lacuna in the case advanced by the appellant - It is evident from the deposition of PW1 that the cheque was issued by the 1st respondent when the 1st respondent came to the office of FCI, West Hill all of a sudden. It is also stated by the appellant that, when the 1st respondent came to the office, he was sitting in the security room of the office and the 1st respondent handed over a cheque for ₹ 3 lakhs. The said cheque is claimed to have been issued by the 1st respondent all of a sudden when the 1st respondent voluntarily came to the FCI, West Hill office and handed over the same to the appellant. None of the persons who were claimed to have interfered for persuading the 1st respondent to arrive at a settlement are not seen examined. When all these aspects are taken into consideration, the case of the appellant is highly improbable and hence the interference in the findings of the learned Magistrate is unwarranted. No circumstances are in existence for interfering in the impugned judgment passed by the trial court - Appeal dismissed.
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