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2022 (9) TMI 610 - HC - Indian LawsDishonor of Cheque - insufficient funds - existence of legally enforceable debt or not - Acquittal of the accused - rebuttal of statutory presumption - section 138 of NI Act - HELD THAT:- As per the case of the complainant, the accused has availed hand-loan of Rs. 1,35,000/- from him and in discharge of the said debt, a cheque under Ex. P1 came to be issued. There is no serious dispute of the fact that the cheque belongs to the accused. Further, the accused has also no disputed his signature on the cheque. Hence, prima facie there is a statutory presumption in favour of the complainant under Sections 118 and 139 of the N.I. Act. However, the said presumptions are rebuttable presumptions. Apart from that, it is also important to note here that the complainant is required to prove his case beyond all reasonable doubt - If the accused is able to create some dent in the case of the complainant, then the statutory presumption stands rebutted and the burden again shifts on the complainant. The offence under Section 138 of the N.I. Act is attracted only if the cheque in dispute is being issued towards legally enforceable debt. In the instant case, though the complainant has asserted that he had advanced hand-loan of Rs. 1,35,000/-, the evidence discloses that, he has failed to establish his financial status to advance such a huge amount to the accused. Further, Ex. D3 discloses that, on behalf of Vajravelu, notice has been issued to the accused for repayment of the hand-loan - it is evident that the complainant has failed to substantiate his contention that Ex. P1 was issued in discharge of legally enforceable debt. Non-reply to the legal notice itself cannot establish the defence or financial status of the complainant. No illegality or infirmity is found in the judgment of acquittal passed by the trial Court. Considering these facts and circumstances, the point under consideration is answered in the negative. Appeal dismissed.
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