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2021 (9) TMI 1159 - SC - Indian LawsDishonor of Cheque - insufficiency of funds - rebuttal of presumption - evidence on record to show that the appellant possessed the funds and the same had been actually paid by him to the respondent to constitute legally recoverable debt or not - preponderance of probablity - HELD THAT:- The signature on the documents at Exhibits P6 and P2 is not disputed. Exhibit P2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the courts below a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. On the position of law, the provisions referred to in Section 118 and 139 of N.I. Act as also the enunciation of law as made by this Court needs no reiteration as there is no ambiguity whatsoever. The legal position relating to presumption arising under Section 118 and 139 of N.I. Act on signature being admitted has been reiterated. Hence, whether there is rebuttal or not would depend on the facts and circumstances of each case. As is evident from the records the notice issued by the appellant intimating the dishonorment of the cheque and demanding payment, though received by the respondent has not been replied. In such situation, the first opportunity available to put forth such contention if true was not availed. Even in the proceedings before the learned JMFC, the respondent has not put forth such explanation in the statement recorded under Section 313 of CrPC nor has the respondent chosen to examine himself or any witness in this regard. The said contention had not been raised even in the appeal filed before the learned Sessions Judge. The case put forth by the respondent does not satisfy the requirement of rebuttal even if tested on the touchstone of preponderance of probability. Therefore, in the present facts it cannot be held that the presumption which had arisen in favour of the appellant had been successfully rebutted by the respondent herein. The High Court therefore was not justified in its conclusion. In the facts and circumstances of the instant case, if an enhanced fine is imposed it would meet the ends of justice. Only in the event the respondent accused not taking the benefit of the same to pay the fine but committing default instead, he would invite the penalty of imprisonment - sentence to undergo simple imprisonment for six months and fine of ₹ 2,00,000/- is however modified. The Respondent/Accused is instead sentenced to pay the fine of ₹ 2,50,000/- within three months. In default of payment of fine the Respondent/Accused shall undergo simple imprisonment for six months - From the fine amount, a sum of ₹ 2,40,000/- shall be paid to the Appellant/Complainant as compensation. Appeal allowed in part.
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