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2018 (10) TMI 1080 - MADRAS HIGH COURTDishonor of Cheque - first appellate Court pointing the inconsistency in the defence version and failure to prove the cheque was stolen from her, dismissed her appeal drawing presumption under Section 139 of N.I. Act - Whether there is any error in the reasoning or finding of the Courts below? Held that:- Under Section 118(a) of the N.I. Act, Court is obliged to presume, until the contrary is proved, that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. In the present case, the accused has not brought out any fact on record for the Court to believe there was no passing of consideration. The complainant and accused are not strangers. The accused in the cross examination of the complainant by way of suggestion, admits that she knew the complainant and he used to visit the share broker office next to her residence and he used to come to her house. At no point of time before trial or during trial, she has explained the possession of her signed cheque with the complainant. It is also not the case of the accused that the complainant is man of no means. An accused in cheque bounce case is not without any opportunity to discharge the burden of presumption. The opportunity shall be by either at the time of reply notice or through cross examination of the prosecution witnesses or through mounting the witness box or examining any other person in support of defence. The reverse burden can be discharged by raising bona-fide doubt in the mind of the Court regarding consideration or enforceable debt through all or any of the above said mode - In this case, the accused had not opted any of the above mode to shift the burden. Except suggesting to the complainant that he has stolen the cheque and without knowing the financial and family background, he could not have advanced a huge sum of ₹ 2,80,000/- . In the said circumstances of the fact and law, the finding of the Courts below does not fall under any of the category to interfere in revision. Taking note of the fact that the transaction is of the year 2008 and the accused being a woman, leniency is required balancing the interest of the complainant. The accused has been confined to prison for about 80 days pursuant to the Judgement - Therefore, no further sentence of imprisonment is required, instead, half of the cheque amount (Rs.1,40,000/-) is ordered as compensation payable to the complainant. Criminal Revision Case is partly allowed and the conviction passed by the Courts below are confirmed. However, the sentence imposed on the revision petitioner/accused is modified into period of sentence already undergone by the revision petitioner/ accused.
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