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2021 (1) TMI 803 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - Respondent had not repaid the amount despite receipt of notice and neither did he reply to the said legal notice - acquittal of accused - Rebuttal of presumption - Whether the appellant has proved the guilt of accused thereby warranting a conviction of the respondent? - HELD THAT:- This Court will have to adjudicate on the theory putforth by the respondent as to a theory which is probable in defence and whether the same has been accepted and admitted by the appellant. When respondent tries to disprove the version of appellant he cannot merely make a statement of denial or posing certain suggestions that he does not owe any money to the appellant. The burden cast on the respondent is so heavy in view of the presumption under section 139 of the Act that while raising the probable defence it has to be more than a mere statement of denial, but it has to be a theory which can be believed by the Court and which is probable to the normal prudent man's understanding. Further, even if, such theory is not putforth by way of any document, the same should be accepted and admitted by appellant in cross-examination therefore, the presumption cast on the respondent under section 139 of the Act clearly says that "unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability". Unless the contrary is proved it is for the respondent to establish by way of cogent evidence either orally or through document to the contrary thereby rebutting the presumption cast under section 139 of the Act. In the present case, it is the case of appellant that right from the date of issuance of legal notice on 15-9-2008, there is clarity when the loan amount was given, in what manner loan amount was given and the post dated cheque having been issued by the respondent on 1-8-2008 by mentioning the date as 16-8-2008 and in order to show abundant caution, the appellant has got indorsed behind the back of cheque, wherein the respondent has countersigned stating that he has received ₹ 3,00,000/- in cash and promises to honour this cheque. This fact of the matter of admitting the signature by respondent and cheque being drawn on the account of respondent and the countersignature at the backside of the cheque has not been disputed - In the present case on hand, it is an admitted fact with regard to issuance of cheque, signature on the cheque and the loan transaction thereby raising a presumption under section 139 of the Act that there exists a legal enforceable debt or liability. No doubt, the said presumption under section 139 of the Act is a rebuttable presumption. In the present case, there is no evidence by respondent which can show that the presumption has been rebutted and the theory put forward by the respondent with regard to Ex.D.1 is a believable theory. Ex.D.1 document is not an admitted document though the signature on the document is not denied. Merely admitting the signature on the document Ex.D.1, it does not prove the admission of contents and proof of the document. The other theory putforth by the respondent that Ex.P.1 was issued as security towards an earlier transaction is not a believable theory. In the absence of any material to show that there is existed any earlier transaction other than the present one stated by the appellant. The Court below has materially erred in not properly appreciating and considering the presumption in favour of complainant-appellant herein that there exists a legally enforceable subsisting debt or liability as per Section 139 of the Act. Further, it is relevant to note here that the trial Court has committed a serious error in shifting the burden of proof to prove the debt or liability and the existence of a debt without appreciating the mandate of legislation as laid down in Section 139 of the Act. Section 139 of the Act is an example of reverse onus clause and therefore once issuance of cheque has been admitted and signature on the cheque has been admitted and in this case transaction of loan is also admitted. There is always a presumption in favour of appellant-complainant that there exists a legally enforceable debt or liability and thereby the burden is on the respondent-accused to rebut such presumption by leading cogent evidence either oral of documentary. The appellant has proved the necessary ingredients of section 138 of the Act for conviction of respondent-accused for the offence punishable under section 138 of the Act - Respondent-accused herein is held guilty for the offence punishable under section 138 of the Act and he is convicted for the offence punishable under section 138 of the Act.
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