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2022 (4) TMI 924 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - acquittal of the accused - burden to prove - preponderance of probabilities - Section 118-A and 139 of the N.I Act - HELD THAT:- It is settled proposition of law that in a case under Section 138 of the N.I. Act, the complainant gets the benefit of presumption under Section 118-A and 139 of the N.I Act, but, it does not mean that undue benefit will be given to the complainant. It is also equally settled that a complainant in a case under Section 138 of the N.I Act has to establish his case beyond reasonable doubt, and the accused has to prove his case following the doctrine of preponderance of probabilities. The signature of the complainant as well as the scribe of the said document appeared to be signed and written by the same ink and pen, but, the signature of the respondent no. 1 appears to be of different ink and pen. Though, it is not mandatory that the signature of the writer has to be of the same ink, but, in the context of the case, these circumstances have led this court to suspect the said document (Exbt.-8) and this court has reason to question the very integrity in execution of the said document. Moreover, there is overwriting in mentioning the date of execution of the said document. Initially, it appears to be written as ‘10.05.2016’, but, later on, by way of overwriting, it appears to be written as ‘18.05.2016’ - These inconsistencies as are surfaced in the said declaration i.e. Exhibit 8 have led this court to draw adverse inference against the genuinity of the execution of the said document (Exbt.- 8). Moreover, the scribe in his cross-examination has stated that he did not identify anybody who signed this document (Exbt.- 8). That apart, most interestingly, the complainant deposing as PW 1, in his cross-examination, has stated that “I do not know whether I have submitted written document or any agreement”. In the instant case, though the respondent no. 1 has not adduced any evidence, but, he has been able to rebut the initial presumption that he had issued the cheque in discharge of his liability to repay his debt to the complainant. Moreso, learned trial court has acquitted the accused, the respondent no. 1 herein, and on such acquittal there is double presumption of the innocence of the respondent no. 1. It is settled law that if the view as taken by learned trial court is a reasonably possible view, in that case, the appellate court should not disturb it just because it feels that another view of the matter is possible. It is equally settled that an order of acquittal will have to be disturbed if it is perverse. Appeal dismissed.
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