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2022 (8) TMI 606 - HC - Indian LawsDishonor of Cheque - preponderance of probabilities - Burden to prove (reverse onus clause) - rebuttal of presumption available under Section 139 of Negotiable Instruments Act, 1881 - HELD THAT:- It has been held by Hon'ble Supreme Court in RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT] that Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under section 139 is a device to prevent undue delay in the course of litigation. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. In the case in hand, the petitioner has not disputed cheque in question and signatures found therein. The petitioner admitted that cheque in question belongs to him and they bear his signature. When the drawer has admitted the issuance of cheque as well as the signature present therein, the presumption envisaged under Section 118 read with Section 139 of NI Act would operate in favour of the complainant. The said provisions lays down a special rule of evidence applicable to negotiable instruments The trial court after examining all the evidences, both oral and documentary, concluded that on behalf of the complainant/O.P.No.2 sufficient material has been brought on record to prove that the complainant gave loan amount to the accused and in lieu of the loan amount accused issued cheque Ext.1 in favour of the complainant/O.P.No.2 and on presentation of the said cheque in the bank, it was dishonoured. Thereafter, legal notice was sent. These factual findings goes to show that all the requirements to establish a case under Section 138 of the N.I. Act has been fulfilled by the complainant. No interference is required so far as judgment of conviction is concerned and the same is hereby sustained. However, so far as compensation amount and sentence is concerned, the learned Appellate Court has sustained the compensation amount of Rs.9 lakhs and sentenced the petitioner to undergo S.I. for a period of 1 year - Having regard to the facts of the case and looking to the continuity of litigation, since the case is of the year 2009 and 13 years have elapsed; interest of justice would be sufficed if the sentence part is modified in lieu of compensation itself. Thus, the sentence of one year is hereby modified to the extent that the petitioner shall pay an amount of Rs.1 lakh over and above 9 lakhs compensation and after paying Rs.10 lakhs in total shall be discharged from his liability of bail bond. The instant criminal revision application is disposed of.
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