Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (6) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (6) TMI 1208 - HC - Indian LawsDishonor of Cheque - existence of legally enforceable debt or not - acquittal of the accused - presumption of innocence - Section 138 of NI Act - HELD THAT:- In the case under NI Act, the cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability. Further, explanation to this section defines the debt and other liability to mean a legally enforceable debt or other liability. In this context, after due appreciation and evaluation of the evidence on record, the learned trial Judge has come to a conclusion that the debt in question cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. It is observed by the learned trial Judge that in the present case, the complainant has not produced any documentary evidence to prove his case and hence, it cannot be believed that the complainant had a legal dues from the respondent – accused. In the overall facts and circumstances of the case, the learned trial Judge has come to the conclusion that the debt cannot be said to be the legally enforceable debt, which is sine qua non in such matters and the complainant has failed to prove the same beyond reasonable doubt. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. In the instant case, considering the evidence on record, it is observed by the learned trial Judge that, in his cross-examination, the complainant has stated that he had given Rs.20 lakh to the accused, out of which, he had arranged Rs.2 lakh from Nathabhai Maganbhai Patel, Rs.2 lakh from Bharatkumar Narandas Patel and Rs.2 lakh from his friend Arvindbhai Chimanbhai Patel. Thus, he had taken an amount of Rs.6 lakh from others, however, to prove such a fact, the complainant has not examined any of above witnesses. On re-appreciation and reevaluation of the oral as well as the documentary evidence on record, it transpires that the complainant has failed to prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are not fulfilled. The Court has gone through in detail the impugned judgment and order and found that the learned trial Judge has meticulously considered evidence on record and come to such a conclusion - the presumption under Section 139 of the NI Act merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability and existence of legally recoverable debt is not matter of presumption under the said section. Nonetheless, as said earlier, the complainant has failed to prove that the cheque was drawn towards legally enforceable debt. In the considered opinion of this Court, the complainant has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned trial Judge do not call for any interference - Appeal dismissed.
|