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2019 (10) TMI 159 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - offence punishable under Section 138 of the Negotiable Instruments Act - legally enforceable debt or liability or not - HELD THAT:- The cheques issued by the Petitioner in favour of the complainant have been presented by the complainant in his bank within a period of six months. On their presentation, the same were dishonoured on account of stoppage of payment. Thereafter the complainant issued demand notice to the Petitioner, however, the Petitioner fails to make the payment of the said amount to the complainant. Therefore there is a compliance of mandate of Section 138 of the Negotiable Instruments Act by the Complainant. Whether there is legally enforceable debt existed as asserted by the complainant, and the cheques in question were issued in discharge of the said liability/debt? - HELD THAT:- It is a settled law that at the stage of taking cognizance and summoning or issuing process, the Magistrate is required to apply his judicial mind only with a view to taking cognizance of the offence, In other words, the Magistrate has to find out whether a prima facie case has been made out or not, and the Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint. The Petitioner/Accused in the present case has to adduce evidence to rebut the presumption that the cheques have been given by the Petitioner to the complainant in discharge of his debt/liability in the trial - further, having regard to the said undertaking given by the Petitioner in the consent terms, this Court is of the prima facie opinion that the Petitioner has admitted his liability. Considering the material on record, the complainant has succeeded in showing that all the essential ingredients of offence under Section 138 have been attracted. It is a settled law that onus lies upon the accused to rebut the presumption and to establish that the cheques in question were not given in respect of any debt or liability, with the standard of proof being preponderance of probabilities. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge. Prima facie the complainant has succeeded in showing that the accused has issued the cheques in discharge of legally enforceable liability, which were dishonoured on their presentation, and that the Petitioner accused failed to make payment of the cheques - Whether the cheques obtained by the complainant from the Petitioner under duress or coercion and/or whether the documents signed by the Petitioner under pressure will be the issue that has to be decided in the trial after adducing evidence by parties. Hence the orders of issuance of process passed by the learned Magistrate do not require any interference. This Court is of the considered opinion that, no case for interference in the impugned orders is made out - Petition dismissed.
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