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2022 (6) TMI 1207 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or not - validity of confirmation of conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - rebuttal of presumption - HELD THAT:- In the instant case, though a presumption about existence of legally enforceable debt was initially formed in favour of the complainant under Section 139 of the N.I.Act, however, the accused by eliciting several statements in the cross-examination of PW1 in his favour and also leading evidence by examining four witnesses from his side, could able to successfully make this court to suppose that no consideration and debt existed. Thus, the presumption formed in favour of the complainant was successfully rebutted by the accused. Once the presumption formed in favour of the complainant stands rebutted, the onus would be upon the complainant to prove the existence of legally enforceable debt or passing of the consideration to the drawer of the cheque towards the cheque issued in his favour. In the instant case, except attempting to show that a presumption was formed in his favour under Section 139 of the N.I.Act, since the complainant has not taken any further steps to show that there existed a legally enforceable debt or that consideration towards the cheque under Ex.P-1 was passed on to accused, suffice it to say that the complainant had failed to prove the alleged guilt against the accused. However, both the Trial Court and the Sessions Judge's Court without analyzing the evidence placed before them in their proper perspective, have hastily embraced the fact that both the parties to the case were known to each other and the cheque that was issued by the accused, was presented by the complainant and the same came to be dishonored and also of the fact that a legal notice was also sent by the complainant after dishonor of the cheque, calling upon the accused to pay the cheque amount, have jumped to a conclusion that complainant has proved the alleged guilt of the accused. Since the said finding of both the Trial Court and the Sessions Judge's Court now proved to be perverse and erroneous, the same warrants interference at the hands of this Court. The impugned judgment of conviction and order on sentence passed by the learned Civil Judge and J.M.F.C, Turuvekere, holding the revision petitioner (accused) guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him for the alleged offence, is set aside - the Criminal Revision Petition is allowed.
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