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2022 (9) TMI 1118 - HC - Indian LawsDishonor of Cheque - insufficient funds - rebuttal of presumption - discharge of burden to prove - preponderance of probabilities - section 138 of NI Act - HELD THAT:- The law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the N.I Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. It has been settled in law that the accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions. In the case on hand, it appears that the accused did not adduce any evidence. Though during cross examination of PW1 issuance of blank cheque and subsequent filling up of the same were suggested, the said suggestions were denied by the complainant - Apart from the said suggestion, no positive evidence to rebut the presumption either adduced or available in this case. Therefore, it has to be held that the courts below rightly convicted the accused under Section 138 of the N.I Act. As per mandate of Section 357 (1)(b) of Cr.P.C, when the court imposes sentence of fine or a sentence of which fine forms a part, the court may when passing judgment, order the whole or part of the fine to be paid as compensation for any loss or injury caused by the offence, when compensation, is, in the opinion of the court, recoverable by such person in a civil court. Section 357(3) of Cr.P.C provides that when a court imposes a sentence of which fine does not form a part, the court may when passing judgment or order by way of compensation, such amount, as may be specified in the order to the person who has suffered any loss or injury by reasons of the act or accused has been so sentenced - Thus in an offence under Section 138 of the N.I Act when the court imposes imprisonment and fine, fine forms part of the sentence. In such cases, the court has to order payment of compensation from the amount of fine as provided under Section 357(1)(b) of Cr.P.C. - the sentence is modified. Appeal allowed in part.
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