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2021 (8) TMI 475 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - stop payment of cheque was ordered - rebuttal of presumption - preponderance of probabilities - section 138 of NI Act - HELD THAT:- The two cheques at Exs.P1 and P2 for a sum of ₹ 2,00,000/- and ₹ 5,00,000/- respectively both dated 22.01.2013 were drawn by the accused. It is also not in dispute that those cheques when presented for realisation came to be returned unpaid with the banker's endorsement as 'exceeds arrangement' with respect to the cheque for an amount of ₹ 2,00,000/- and with a reason of 'insufficiency of funds' with respect to the cheque for an amount of ₹ 5,00,000/- as could be seen from exhibits P3 to P5. It is also not in dispute that after the dishonour of the cheques, the complainant got issued a legal notice to the accused as per Ex.P7 to which the accused sent a reply as per Ex.P10 - these undisputed facts would form a presumption in favour of the complainant about the existence of a legally enforceable debt under Section 139 of the N.I. Act. However, the said presumption is rebuttable. Even though the alleged 'stop payment' instruction is shown to have been given on 22.06.2012, it cannot be ignored of the fact that the cheques in question are dated 22.01.2013 which means that they have been drawn subsequent to the alleged 'stop payment' instruction. Even though the accused has also stated that he had filed a police complaint against the complainant on 07.06.2012 but admittedly the police, except issuing an endorsement in form 76A as can be seen at Ex.D3 have not filed any charge-sheet against the complainant. Further the accused has produced a copy of the application said to have been filed by him for housing loan and also statement of account at Exs.D4 and D7 respectively. But they also do not prove that the alleged balance amount of ₹ 7,00,000/- has been paid by the accused to the complainant in cash. Thus the attempt made by the accused to show that he has cleared the alleged outstanding liability of ₹ 7,00,000/- to the complainant by paying the said amount in cash could not be established by him. As such, the presumption that was formed in favour of the complainant becomes crystallised and accused could not succeed in rebutting the said presumption formed in favour of the complainant even by making out a case of preponderance of probabilities. The Trial Court has convicted the accused for the alleged offence which was further confirmed by the Sessions Judge's Court - the trial Court has sentenced the accused to pay a fine of ₹ 10,00,000/-, in default of payment of fine amount, to undergo simple imprisonment for a period of six months. It has further ordered that, out of the total compensation/fine amount, a sum of ₹ 5,000/- shall to be remitted to the State as fine. The Criminal Revision Petition is partly allowed.
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