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2022 (9) TMI 424 - HC - Indian LawsDishonor of Cheque - insufficient funds - existence of legally enforceable debt or liability - acquittal of the accused - burden to prove - preponderance of probability - section 138 of NI Act - HELD THAT:- There was no need or necessity for him to go into the witness box and to give his evidence. There was no compulsion to the accused to give his evidence. It was for the complainant to establish his case basing on the preponderance of probabilities. The burden was heavily upon the complainant that he had advanced money to the accused. No Income Tax Returns were filed by the complainant, as such, the Appellate Court held that the complainant miserably failed to establish the offence under Section 138 of N.I. Act; and that the accused was entitled for acquittal. In Rangappa v. Mohan case [2010 (5) TMI 391 - SUPREME COURT], the Hon’ble Apex Court held that “ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the N.I. Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act”. Coming to the facts in the present Revision, the accused herein also failed to give reply to the statutory notice given by the complainant under Section 138 of N.I. Act which would lead to an inference that there was merit in the version of the complainant. If the accused repaid the amounts taken by him as handloans earlier, then why the accused had not demanded the complainant to return the said cheque which the accused had given as security, was not explained by the accused - both the Courts below had placed the burden of proof on the complainant to show that it was the complainant who had to establish that there was a legally enforceable debt, even though the accused had not disputed the issuance of cheque to the complainant. As such, it is considered fit to convict the accused and to sentence him to undergo simple imprisonment till rising of the day and to pay a fine of Rs.2,43,000/- with default sentence of three months simple imprisonment - the concerned Magistrate is directed to secure the presence of the accused by issuing a warrant to undergo the sentence in the open court and to cause recover the fine amount; and on such recovery, the fine shall be paid to the complainant as compensation under Section 357 of Criminal Procedure Code. The Criminal Revision Case is allowed.
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