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2023 (10) TMI 219 - HC - Indian LawsDishonour of Cheque - insufficient of funds - burden of proof lies on the petitioner but he failed to prove his case - rebuttal of presumption - HELD THAT:- The presumption under Section 139 of Negotiable Instruments Act is rebuttable presumption and if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Further the burden was heavily upon the claimant to have showed that he had required funds for having advance money to the accused. In the case on hand, the accused admitted the signature found in the cheque and issuance of cheque but the contention of the petitioner is that he already repaid the amount but the said repayment was not proved by the petitioner. The issue in the case of Tedhi Singh v. Narayan Dass Mahant [2022 (3) TMI 797 - SUPREME COURT] and John K. Abraham v. Simon C.Abraham and another [2014 (1) TMI 528 - SUPREME COURT], are not applicable in the facts of the present case. On careful reading of the judgment, it is clear that once the accused admitted the issuance of cheque or signature found in the cheque, the presumption under Section 139 of Negotiable Instruments Act would operate and the burden was on the accused to disprove the cheque or existence of legally enforceable debt - in the case on hand also, the accused admitted the issuance of cheque, signature of cheque and thereby, he has to disprove the cheque and his liability but he failed to prove the same. Thereby, the aforesaid case law will squarely applicable to the present facts of the case. In this case, the oral and documentary evidences and witnesses clearly established the case of the complainant and the defence theory put forth by the accused was not proved and thereby, the trial Court as well as the appellate Court came to the fair conclusion and convicted the petitioner/accused for the offence under Section 138 of Negotiable Instruments Act. There is no infirmity found in the judgment of the Courts below and thereby this Court warrants no interference. The Criminal Revision Petition is dismissed.
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