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2018 (11) TMI 95 - MADRAS HIGH COURTDishonor of cheque - Section 138 of the NI Act - burden of proof shifted on complainant - acquittal of accused by stating that the complainant has failed to prove that the 2nd accused received a sum of ₹ 50,000/- from the complainant as loan and in order to discharge the said loan, she had given the impugned two cheques - Held that:- On overall analysis of the evidence on record, it is seen that the trial Court erred in holding that DW1 had set up the complainant to initiate the proceeding against the accused by giving the impugned cheques given to him as security by the accused. The story of setting up pleaded by the accused has not been proved by way of documentary proof. In the absence of any proof, it cannot be contended that DW1 had set up the complainant to initiate the present proceedings. Burden of prove - Held that:- It is also settled that the accused had to prove in the trial by leading cogent evidence that there was no debt or liability and that the accused not having led any evidence could not be said to have discharged the burden cast on him. Existence of legally recoverable debt or liability is a matter of presumption under Section 139 of the NI Act. In the case on hand, the 2nd accused has not gone into the witness box. Since issuance of Exs.P1 and P2-cheques by the accused is admitted and the complainant has proved his case by way of preponderance of evidence to show that Exs.P1 and P2-cheques returned with an endorsement funds insufficiency, it is to be held that the complainant has proved his case and that the trial Court went wrong in dismissing the complaint and acquitting the accused. The criminal appeal is allowed setting aside the acquittal recorded by the trial Court and finds the accused guilty of offence under Section 138 of the NI Act - appeal allowed.
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