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2022 (7) TMI 709 - HC - Indian LawsDishonor of Cheque - discharge of legal liability towards complainant or not - accused has failed to to rebut the onus of proof and statutory presumption or not - preponderance of probabilities - privity of contract - HELD THAT:- In the case under NI Act, the cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability. Further, explanation to this section defines the debt and other liability to mean a legally enforceable debt or other liability. In this context, after due appreciation and evaluation of the evidence on record, the learned trial Judge has come to a conclusion that the debt in question cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. It is observed by the learned trial Judge that in the present case, the complainant has not produced any documentary evidence to prove his case and hence, it cannot be believed that the complainant had a legal dues from the respondent – accused. As admitted by the complainant himself, it is clear that there was no privity of contract between the company and the accused. Further, it is also an admitted fact that the contract/agreement was made by Pankajbhai Dhirajlal Varia in his personal capacity and not by the company. Besides, there is nothing on record to show as to how and as to why for the so-called affairs of the company, Pankajbhai Dhirajlal Varia acted in personal capacity. If at all it is believed that the cheques were issued by accused to the company, in that case also, there is not an iota of evidence to show that the cheques were issued for the debt in question inasmuch as no details of transaction, books of accounts or any other document is produced on record to show the privity of contract between the parties. Thus, the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities - the presumption under Section 139 of the NI Act merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability and existence of legally recoverable debt is not matter of presumption under the said section. In the instant case, from the cross-examination of Pankajbhai Dhirajlal Varia by the accused, it has come on record that there was no contract and/or agreement between the company and the accused but the same was in the personal capacity by Pankajbhai Dhirajlal Varia. Further, Pankajbhai Dhirajlal Varia has not produced original contract/agreement on record. Moreover, as said earlier, the complainant has not produced any books of account and/or any details of transaction between them - when the complainant has failed to fulfill the initial burden of proving the legally enforceable debt, the presumption against the respondent – accused is justifiably rebutted. In the considered opinion of this Court, “ in fleri” the complainant has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned trial Judge do not call for any interference - Appeal dismissed.
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