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2022 (11) TMI 397 - HC - Indian LawsDishonor of Cheque - Application of Money Lending Act - discharge of legally enforceable debt or not - rebuttal of statutory presumption - preponderance of probabilities - privity of contact - section 138 and 139 of NI Act - HELD THAT:- The complaint was taken up for trial and ended in conviction holding the petitioner guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881. The trial Court sentenced the petitioner to undergo SI for one year and also directed to pay compensation of Rs.25,00,000/- being the cheque amount. The compensation was directed to be paid within a period of three months, from the date of the judgment in default, to undergo SI for a period of three months. The complainant in the cross examination though admits that he is engaged in money lending business and he is not a registered money lender, as far as this transaction is concerned, even in his statutory notice, the complainant has categorically stated that the petitioner herein being a long time friend has lend money for free of interest. That being the case, when the transaction is not for interest, the Money Lending Act have no application. The standard of proof to rebut the presumption under Section 118 and Section 139 of the Negotiable Instruments Act, 1881 though not as high as required for the prosecution to prove and even preponderance of probability is sufficient for rebuttal. The accused cannot take inconsistent stand to claim that he has probabilise his defence. Inconsistent plea as a rebuttal evidence will improbabilise the rebuttal - In the instant case, the petitioner/accused had informed the bank that the subject cheque got lost he has intimated the police that the subject cheque was taken away by force by the complainant/respondent. But in the course of the trial, he has suggested to the witness that this cheque was given in respect of the liability of one Govindarajan. However, the issuance of the cheque and money transaction with the respondent/complainant has not been denied. The foundational fact of the drawing cheque and the privity has been proved by the complainant. No material placed by the accused to discharge the burden. This Court finds no error in the finding of the trial Court - this criminal Revision Case is dismissed.
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