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2021 (3) TMI 284 - TRIPURA HIGH COURTDishonor of Cheque - undated cheque was given as security - failure of the respondent to pay the amount in spite of the issuance of the notice - whether cheques were issued for discharge of debt or not? - HELD THAT:- The respondent as DW1 had stated that he was involved in an NGO which used to undertake various development works in different places of Tripura, and the complainant being a Mechanic was engaged as a Site Manager with that NGO to open a Driving School and two blank cheques were signed by the respondent and handed over to the complainant to run the institution. But, on 21.11.2014, the complainant reported the respondent that those two cheques were missing from his custody for which the respondent reported the same to the police station and also to the bank. DW1, i.e. the respondent also deposed that the complainant had misused the cheques for his illegal gain. The entire scheme of Negotiable Instruments Act, 1881 draws a clear distinction between a check issued for a debt in present but payable in future and second for a debt which may become payable in future upon the occurrence of a contingent event - In the present case, it is aptly clear that the complainant provided loan to the respondent for a sum of ₹ 50,000/- on 20.09.2014 and ₹ 1,00,000/- on 19.10.2014 and on the same date, on providing of such loan to the respondent, he received two cheques(Exbt.1/A and Exbt.1/B) from the respondent. According to the complainant, towards repayment of the said amount, the respondent had issued the said two cheques. Thus, it is apparent that the respondent issued the cheques on the dates of borrowing the loan from the complainant as is revealed from the deposition of the complainant itself that the respondent promised to make repayment of the loan in the month of November, 2014 i.e., the cheque would be effective on a future date. It is trite that in a criminal jurisprudence, the burden to prove that the accused has committed the offence would lie on the complainant. Prosecution must prove the guilt of an accused beyond all reasonable doubt. The standard of proof so as to prove a defence on the part of an accused is “preponderance of probabilities”. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies - Thus, even assuming for a moment that the appellant has failed to probabilise the defence of misuse of blank undated cheques, it is found that the complainant has failed to establish by acceptable evidence that indeed the subject cheques were issued in discharge of legally enforceable debt or liability. Thus, as an undated cheque having been given only as a security, the provision of Section 138 of the Negotiable Instruments Act are not at all attracted and hence, the charges framed against the respondent cannot sustain - appeal dismissed.
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