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2018 (11) TMI 237 - HC - Indian LawsDishonor of Cheque - recovery of loan - Section 138 of Negotiable Instruments Act - acquittal of accused - Held that:- The issuance of Ex.P1-cheque by the accused and his signature therein are admitted by him. When the accused pleaded that he had not issued the cheque (Ex.P1) for repayment of the loan amount borrowed, it is the bounden duty of the accused to prove the same by way of preponderance of evidence - In this case, the initial burden lies on the accused, however, he has failed to do so. As recorded by the trial Court, the accused has not examined himself as witness. It is settled that Sections 138 and 139 of the N.I. Act introduced exceptions to the general rule as to the burden of proof in criminal cases and shifted the onus on the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt - 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 N.I. Act. Since issuance of Ex.P1-cheque by the accused and his signature therein are admitted by the accused and the complainant has proved his case by way of preponderance of evidence to show that Ex.P1-cheque returned with an endorsement funds insufficient, it is to be held that the complainant has proved his case and that the lower appellate Court went wrong in setting aside the judgment of the trial Court, which is a well founded - the acquittal of the accused by the lower appellate Court deserves interference. The judgment of the trial Court in C.C.No.715 of 2005, dated 03.7.2007 on the file of the learned Judicial Magistrate No.II, Salem is restored - appeal allowed.
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