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2020 (1) TMI 747 - HC - Indian LawsLeave to appeal - Dishonor of Cheque - friendly loan - existence of legally enforceable debt or not - offence u/s 138 of NI Act - the case of complainant/petitioner is that she had advanced loan of ₹ 3,15,000/- to accused/respondent no.2 but the same has not been supported by any document to prove that the loan was actually advanced - HELD THAT:- It is not in dispute that loan was given in the year 2012. The petitioner has also stated in her complaint Ex.CW1/6 in para 5 that “the accused had issued two other cheques out of which cheque for ₹ 5,000/- was honoured on 08.08.2012 and another of ₹ 15,000/- was dishonoured on 28.12.2012”. She has also stated in her cross-examination as CW-1 that “I had received total three cheques from the accused. The first cheque was cleared on 08.08.2012 and second cheque was dishonored vide memo dt. 28.12.2012 and the third cheque was dishonored vide memo dt. 21.01.2014” The Ld. Trial Court observed that petitioner has also failed to give particular dates on which the cheques were issued by respondent no.2 in favour of the petitioner. Further, petitioner has not given any satisfactory reason as to why she did not send any written communication demanding the balance payment from respondent no.2. This fact becomes all the more important in the light of the testimony of respondent no.2 as DW-1 and legal notice Ex.DWl/C sent to the petitioner in October 2013 demanding his security cheques from the petitioner - the learned Trial Court opined that the case of the petitioner that there exists legally enforceable debt of ₹ 3,15,000/- against respondent no.2, is rendered doubtful. It is a settled principle of law that the presumptions U/s 118 (a) and 139 of N.I. Act, 1881 are rebuttable in nature and standard of proof required by accused such rebuttal is preponderance of probabilities and the standard of proof on behalf of prosecution is proof of guilt beyond all reasonable doubts. The petitioner/complainant has miserably failed to prove her case beyond reasonable doubt - petition dismissed.
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