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2022 (7) TMI 816 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or not - discharge of initial burden of prove - rebuttal of presumption - acquittal of accused - Section and 138 and 139 of NI Act - HELD THAT:- It is well settled that the initial burden that the cheque was given and that it was issued in discharge of a legally enforceable debt has to be discharged before the presumption can be invoked. When the complainant fails to discharge the initial burden of showing that there was, in fact, a legally enforceable debt or liability due to him by the accused, the question of presumption under Section 139 of the Act in favour of the complainant, does not simply arise. The presumption contained under Section 139 of the Act arises only, when the initial burden lying on the complainant to show existence of legally enforceable debt or liability, is discharged. However, the accused by adducing oral evidence and filed Ex. D.1 to D.4 documentary evidence rebutted the presumption under Section 139 of the Act. Since the accused rebutted the presumption whatever arisen by adducing oral and documentary evidence, the onus shifts again on the complainant to prove his financial capacity by adducing oral evidence, more particularly, when it is the case of giving loan by cash - In the present case, the complainant has miserably failed to discharge the burden cast on him and there is no cogent evidence to believe that the accused had, in fact, issued the alleged cheque in favour of the complainant towards discharge of legally enforceable debt. The learned trial Court has rightly concluded that the complainant failed to prove the essential ingredient of the offence that the alleged cheque under Ex. P.1 for Rs. 6,20,000/- was issued by the accused against discharge of legally enforceable debt, as such, rightly dismissed the complaint and acquitted the accused under Section 255(1) Cr.P.C. for the offence under Section 138 of the Negotiable Instruments Act, 1881 - Appeal dismissed.
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