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2022 (10) TMI 260 - HC - Indian LawsDishonor of Cheque - acquittal of the accused - respondent/accused succeeded in rebutting the presumption - appellant strongly contended that the learned Magistrate failed to consider presumption under Section 139 of N.I. Act and wrongly put a burden on the complainant to prove otherwise - cross-examination of the complainant - sharing of profit - preponderance of probablities - Section 138 of the Negotiable Instrument Act - HELD THAT:- The civil suit, though based on the same Agreement between the parties, is for the purpose of recovery of the amount whereas present proceedings are under Section 138 of the N.I. Act which is a penal provision on the ground that the accused failed to pay the amount mentioned in the cheque within a stipulated period of 15 days from the date of receipt of a legal notice. Thus, the civil action is completely separate and distinct and cannot be mixed up with the present proceedings. In the present case, the complainant paid the amount of ₹ 10,00,000/- to the accused by cheques which are reflected in the Agreement. The accused admitted a receipt of such an amount. The complainant stated that she received the said amount as a gift from her husband. Therefore, when the bank transaction clearly shows that the complainant was having an amount of ₹10,00,000/- which she paid to the accused by way of three cheques and the accused admitted of the receipt of such amount in an Agreement, the said accused cannot be allowed to question the capacity of the complainant to pay such amount. The evidence to that effect is more convincing on the basis of the Agreement and the cheques by which the amount was paid to the accused a friendly loan. It is clear that the accused need not enter the witness box to rebut the presumption. However, such presumption of law cannot be considered as rebutted only by giving denials and suggestions. There has to be some cogent material brought on record during the evidence of the complainant and his witnesses, on the preponderance of probabilities so as to rebut such presumption - In the present matter and from the cross-examination of the complainant, it is clear that the accused failed to rebut the presumption under Section 139 of N.I. Act. Once the accused acknowledged the debt of ₹12,50,000/- as mentioned in the Agreement itself, there was no need for the complainant to prove anything further. However, the accused was required to rebut such presumption by leading cogent and convincing evidence or by showing probabilities in his favour from the cross-examination of the complaint, both are absent in the present matter - On one hand he admitted receipt of three cheques issued by the complainant in his favour for a sum of ₹10,00,000/- as hand loan and thereafter tried to raise the defence that the complainant was not having sufficient finance, which cannot be permitted. Thus, the observations of the learned Trial Court are against the settled propositions of law and therefore, need interference. As far as the date of the cheque is concerned, the learned Magistrate has clearly observed that it was drawn on 23/11/2011 and not on 23/04/2011 as tried to be projected. Such findings are not challenged by the accused in any proceedings. Even otherwise such ground is of no substance as the Agreement at Exh-47 clearly discloses the number of the cheque, the date and the amount. The accused/respondent No.1 herein is found guilty of the offence punishable under Section 138 of the N.I. Act - Appeal allowed.
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