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2020 (5) TMI 717 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - discharge of legally enforceable debt or not - rebuttal of presumption - whether the accused-respondent No.1 could rebut the fact in respect of a legally enforceable debt by deterring presumption under Section 139 of the NI Act? - HELD THAT - From the evidence it appears that after receipt of the demand notice which was delivered on 02.07.2013 the accused-respondent No.1 did not make payment to the complainant. The trial court has clearly observed that the court has condoned the delay that occurred in filing the complaint within one month from the day of expiry of 15 days from the day of receipt of the demand notice. Hence the trial court has observed that the requirement of Section 138 of the NI Act for convicting any person has been complied but the complainant according to the trial court has failed to prove the existence of legally enforceable debt or liability and no presumption under Section 139 of the NI Act can be drawn. This court finds that sufficient justification has been given by the trial court while drawing inference in respect of financial capacity of the complainant. Even if the other inference is capable of being drawn this court in view of the settled position of law as enunciated by the apex court in CHANDRAPPA AND ORS. VERSUS STATE OF KARNATAKA 2007 (2) TMI 704 - SUPREME COURT should not embark upon to disturb the finding of acquittal recorded by the trial court. In RANGAPPA VERSUS SRI MOHAN 2010 (5) TMI 391 - SUPREME COURT the apex court has clearly held that it is the settled position of law for that rebutting the fact that might lead to the presumption under Section 139 of the NI Act the standard of proof is of preponderance of probabilities. From the evidence of the complainant it has been shown that the debt for discharge of which the cheques were issued may not be real if seen in the light of the financial capacity of the complainant. Thus in the considered view of this court the accused-respondent No.1 has discharged his onus by creating a serious doubt in respect of financial capacity of the complainant. This court is not inclined to disturb the finding of the trial court by acquitting the respondent No.1 - Appeal dismissed.
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