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2020 (12) TMI 146 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or not - the petitioner was supposed to prove preponderance of probability that at the time of legal notice - HELD THAT:- Vide the present petition under Section 482 Cr.P.C., the petitioner has sought to combine the Civil Execution Proceedings pending before the Learned Additional District Judge, Tis Hazari Court, Delhi, and the criminal proceedings pending before the Learned Metropolitan Magistrate. The said reliefs cannot be granted since both proceedings are mutually exclusive and are pertaining to different reliefs since one is pending before the Additional District Judge for execution of the settlement decree dated 29.01.2015 and the other is before the Learned Metropolitan Magistrate for compliance of the order of conviction and which has been disposed of vide order 18.01.2020 whereby the petitioner has been declared an absconder after due procedure under Section 82 Cr. P.C. was followed. The present petition is liable to be dismissed since the Petitioner has not come before this Court with clean hands especially as the Petitioner has defaulted on payments, eventually, it was required to make efforts to satisfy settlement decree dated 29.01.2015. The said settlement decree has attained finality and is liable to be complied with. Hence, the petitioner through the present petition cannot seek to override/appeal/modify the contents of the said Settlement Decree. The presumption of law, though rebuttable, works in favour of the complainant. However, the presumption gets rebutted if the defence raises a reasonable suspicion in the prosecution story by raising a probable defence. In other words, provided 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 presumption. However, this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary - the onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and the same can be done by accused by either bringing out loopholes in the case of the complainant or by bringing a reasonably probable defence in his favour. Since such case attracts a criminal liability, the burden of proof upon the complainant is to the extent of proving his/her case beyond all reasonable doubts whereas the accused is required to create preponderance of probabilities in this favour. Admittedly, there has been default, in making payment, on the part of petitioner since July 2011. Despite the decree passed by this Court and conviction by the Trial Court, till date respondent has not received the payment due. The legal fight of the respondent had started from the legal notice dated 11.08.2011 and continued till date. Thus, the respondent was compelled to run from pillar to post. In such circumstances as in the present case, the petitioner deserves no leniency or sympathy. There is no illegality or perversity in the orders passed by the Trial Court and Appellate Court as well - Petition dismissed.
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