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2019 (8) TMI 248 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - acquittal of accused - complainant failed to prove execution of the cheque by the accused and the presumption under Section 139 of the Act cannot drawn in his favour and found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him - HELD THAT:- The denial of execution and transaction canvassed by the accused, necessarily, has to be appreciated in the totality of the facts and circumstances presented in the case. It is well settled that where execution of the cheque is denied it has to be proved by the complainant. But, what is the rigour of proof that is required to prove the execution, where there is denial by the accused, depends upon the facts and circumstance involved in the case. In the instant case, there is no sufficient reason to disbelieve the evidence of PW1 that the accused made the entries in the cheque and signed it and gave it to him. When the evidence of PW1 is appreciated in the totality of the facts and circumstances presented in the case and in the context of the unreasonable and improbable plea raised by the accused, it can very well be found that his evidence is sufficient to prove that Ext.P1 cheque was drawn and delivered to him by the accused - Once execution of the cheque by the accused is proved, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. It is obligatory on the court to raise the presumption under Section 139 of the Act in every case where the factual basis for raising the presumption had been established. It is a presumption of law as distinguished from a presumption of fact. When the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In the present case, no attempt whatsoever was made by the accused to rebut the presumption under Section 139 of the Act. It is not essential that the accused should adduce evidence of his own to rebut the presumption. It is enough if he succeeds in discharging the burden to rebut the presumption by the cross examination of the complainant or by bringing in probabilities in his favour and improbabilities against the complainant. But he has to prove that his version is probable and acceptable and competes in probabilities convincingly with the version of the complainant. That burden remains undischarged in the facts and circumstances of this case - the complainant had proved that the accused had drawn and delivered Ext.P1 cheque to him. The accused could not rebut the presumption under Section 139 of the Act. It follows that the complainant has been able to prove that the accused committed an offence punishable under Section 138 of the Act. The impugned judgment of acquittal warrants interference. Appeal allowed - decided in favor of appellant
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