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2022 (3) TMI 448 - HC - Indian LawsDishonor of cheque - legally enforceable debt or not - acquittal of the accused - rebuttal of presumption - Whether the judgment of acquittal passed by the trial Court is perverse, capricious and arbitrary so as to call for interference by this Court? - HELD THAT:- It is mandatory for drawing presumption under Section 139 of N.I. Act regarding existence of legally enforceable debt and onus to rebut the same is on the accused. But, admittedly, in the instant case, except giving some explanation, no attempt has been made by accused to rebut the said presumption. Further, admittedly accused has admitted his signature on the cheque and that the cheque belongs to him. His defence regarding cheque issued towards security to one Balu is not established. Under these circumstances, the ingredients of Section 138 of N.I. Act have been established by the complainant. The learned Magistrate was carried-away by making unnecessary observation without there being any specific defence and hence approach of the learned Magistrate is perverse, erroneous and arbitrary, and it has led to miscarriage of justice. The learned Magistrate has not considered the materials placed before the Court properly, while acquitting the accused and has also not considered the statutory presumption in favour of the complainant under Sections 118 and 139 of N.I. Act. As such, the trial Court has erred in acquitting the accused and the same requires to be interfered by this Court. This is a fit case to reverse the finding of the trial Court - the point under consideration is answered in the affirmative - Appeal allowed.
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