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2020 (6) TMI 9 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - rebuttal of presumption - failure of the drawer to make the requisite payment within fifteen days from the date of receipt of the notice - section 138 of NI Act - HELD THAT:- Although the violation of the provisions of Section 269SS of the Income tax Act is an offence under Section 271-D of the Act, but it is not an offence under the Negotiable Instruments Act, 1881, which is silent about the cash limit. Thus, these violations alone may not be sufficient to throw away the complaint in entirety; still, it remains as one of the factors which would weigh in favor of the accused, while appreciating the evidence led in the course of discharging the statutory presumptions of Ss. 118 and 139 of the Negotiable Instruments Act, 1881 - Another factor that creates a serious doubt in the credibility of the holder of the cheque is that in cross-examination, the complainant admitted that although he was an Income Tax Payee, he had not mentioned the loan of ₹ 4,00,000/- in his books of accounts. The fundamental law relating to the successful rebuttal of the statutory presumption under Section 118 and 139 of the Negotiable Instruments Act, 1881 by the accused is that the burden to prove the accusations shifts back upon the complainant after the accused reasonably discharge the initial statutory onus of proof by establishing the facts contrary to the complaint’s evidence, or by showing that the existence of consideration was improbable, or doubtful, or the same was illegal. After this, the burden shifts back to the complainant who will be obliged to prove her case just like any other criminal trial, where the initial burden is always on the accuser, and it never shifts - Failure to establish the accusations beyond a reasonable doubt would disentitle her for granting relief based on the bouncing of the negotiable instrument. The judgments of conviction are neither based on correct appreciation of evidence nor the proper application of law. The accused has successfully created a reasonable introspection in the mind of the Court by raising a probable defence that creates a serious doubt about the existence of a legally enforceable debt or existing liability - this Court is allowing the present petition, setting aside the judgments of conviction, and acquitting him of the accusations, by giving him the benefit of the doubt. Petition allowed.
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