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2021 (1) TMI 22 - HC - Indian LawsDishonor of Cheque - Unsigned Cheque - insufficiency of funds - rebuttal of presumption - burden of proving that a cheque had not been issued for a debt or liability - main grounds urged in the appeal is that the Trial Judge has committed an error in acquitting the accused and failed to take note of the mischievous act of the accused in issuing an unsigned cheque - HELD THAT:- These are the aspects which have not been considered by the Trial Court while considering the material available on record both oral and documentary evidence and in the cross-examination of PW.1 also nothing is elicited to prove preponderance of probabilities of the case of the accused. PW.1 only gives the admission with regard to the transaction is concerned and having acquaintance with the accused and also admits that the payment was made in respect of consultation charges of the accused and it is clear that the services of the accused was availed for conversion of the land. No doubt, in the cross-examination of PW.1, it is elicited that no documentary proof with regard to entrusting the work to the accused for conversion of the land and then, the accused has to explain why he has received the amount more than ₹ 7,50,000/- other than the exhibits he relied upon. There is no explanation on the part of the accused for having received more than ₹ 7,50,000/-, when this Court comes to a conclusion that the document - Ex.P4 is issued by the accused only since he has not sent the document to the handwriting expert and the very theory of he has given the blank cheque as security cannot be accepted that too unsigned cheques. The trial Judge has committed an error in coming to the conclusion that the accused has made out the case by rebutting the evidence of the complainant and preponderance of probabilities are made out. The trial Judge did not consider the material available on record in a proper perspective. The Trial Court ought to have drawn the presumption against the accused under Section 139 of the NI Act. When the accused though denied the signature when he has not sent the same to the handwriting expert and also not given any reply to the notice and instead of drawing the presumption in favour of the complainant, the trial judge believed the evidence of the accused and committed an error which amounts to perversity and also not considering the material available on record. The impugned judgment of acquittal is hereby set aside - Appeal allowed.
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