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2022 (3) TMI 1442 - HIMACHAL PRADESH HIGH COURTDishonor of cheque - insufficient of funds - discharge of a legally enforceable debt or not - rebuttal of statutory presumption - section 118 and 139 of NI Act - HELD THAT:- The Hon’ble Apex Court in M/S LAXMI DYECHEM VERSUS STATE OF GUJARAT & ORS. [2012 (12) TMI 106 - SUPREME COURT], has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. In the case at hand, complainant Ashok Kumar tendered his evidence by way affidavit, Exhibit CW-1/A and stated that the accused was in need of money, as such, requested him to lend Rs. 2,70,000/- and same was given by the complainant to the accused - True it is that in cross-examination complainant has stated that he gave some money in cash and some through bank but he could not recollect how much money was paid in cash and how much through bank. Complainant stated that there was no witness present, at the time, when he had given money to the accused, but such admission on the part of the complainant is of no benefit to the accused, when issuance of cheque and signatures thereupon of the accused stand duly admitted. Material adduced on record clearly reveals that the complainant successfully proved on record that accused borrowed Rs. 2.70 Lakh from him and, with a view to discharge his liability, issued cheques Exhibits CW-1/B and CW-1/E, but the same were dishonoured on account of insufficient funds in the bank account of the accused. Since, despite having received legal notice, accused failed to make payment of the cheque amount, complainant rightly instituted proceedings under Section 138 of the Act against him, which subsequently came to be rightly decided in favour of complainant in the totality of evidence led on record by complainant. This Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below - Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power. The impugned judgments/order of conviction and sentence passed by learned Courts below are upheld - the present revision petition is dismissed.
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