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2023 (8) TMI 461 - HC - Indian LawsDishonour of Cheque - insufficiency of funds - failing to discharge his initial burden of proof by the complainant - rebuttal of statutory presumption - HELD THAT:- On going through the judgements of the learned Magistrate and the learned Session Judge, it is before this court that there is sufficient evidence to show that the cheque was duly issued and after completion of all formalities the proceedings under section 138 NI act was initiated. The findings of the session judge that respondent No.1/complainant completely failed to discharge his initial burden of proof is totally erroneous and bad in law. The Session Judge totally overlooked the fact that Sec 139 N.I Act clearly includes a presumption that there exists a legally enforceable debt or liability. However the presumption is rebuttable by the accused. There is no such requirement of the complainant to discharge his initial burden of proof as held by the Session Judge. The question of failing to discharge his initial burden of proof” by the complainant as held by the session is erroneous and bad in law and the judgement under revision is thus liable to be set aside - The case is of the year 2017. Five years have passed. Accordingly the amount of fine is modified to Rupees 4,00,000/- instead of Rs 5,20,000/- to be paid within two months from the date of this judgement, in default the accused shall serve out his sentence of imprisonment in default of fine. The Judgement is hereby set aside - revision disposed off.
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