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2022 (4) TMI 63 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - failure on the part of the respondent to pay the amount despite demand - existence of legal debt or liability against the respondent - preponderance of probabilities - Section 145 of the Negotiable Instrument Act - HELD THAT:- The presumption enshrined under Section 139 of the Negotiable Instrument Act is not absolute and is rather rebuttable presumption. The accused would be discharged of the presumption, the moment an accused raises reasonable suspicion with respect to the due execution of the cheque. It is not incumbent upon an accused to lead evidence and even subjecting the complainant to cross-examination on such aspects can be taken as sufficient grounds to shift the burden upon the complainant to establish that the debt in question was duly advanced to the drawer of the cheque - the burden of proof would thereafter shift upon the complainant to prove that the cheque had been executed in discharge of a pre-existing liability/legally enforceable debt. Existence of legally enforceable debt is a pre-requisite for issuance of a cheque. It is a settled proposition of law that presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from a presumption of fact, such a presumption is a rebuttable presumption and the drawer of the cheque may dispel the same. The law is thus well settled that in order to rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the instrument in question was not supported by consideration and that there was no debt or liability to be discharged by him. The Court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated - To disprove the presumption, an accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or that their non-existence was so probable that a prudent man, would under the circumstances of the case, act upon the plea that they did not exist. It is evident from a perusal of the facts and the position in law noticed above that the respondent-accused had taken a specific plea that there was no transaction ever amongst the complainant and the accused and that the cheque in question had been handed over by her to Priya Kapoor towards a chit fund committee and the same was not in discharge of any liability. The same was rather in the nature of an investment. The said cheque has been misused by Priya Kapoor in connivance with the appellant - Financial capacity of a person to pay would not necessarily mean that the amount in question had been advanced to an accused. The obligation is upon the complainant to establish, when a question is raised about the ability and the fact of having advanced a loan, that not only did the complainant have the financial capacity to advance the amount claimed to have been advanced but also that such an amount was actually advanced. The complainant failed to establish the same by any cogent and convincing evidence. All the material facts already stand examined by the Chief Judicial Magistrate Tarn Taran. It cannot be said that the finding so recorded by the Chief Judicial Magistrate, Tarn Taran is perverse or suffers from legal infirmity or impropriety or that the conclusion so drawn by the Chief Judicial Magistrate, Tarn Taran is not tenable upon reading of such evidence. The appeal is dismissed.
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