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2022 (11) TMI 993 - HC - Indian LawsDishonor of cheque - insufficient funds - rebuttal of presumption - preponderance of probabilities - Section 138 of NI Act - HELD THAT:- Merely because the accused has produced some copies of the alleged invoices, it cannot be inferred that those invoices, which are disputed by the complainant, have been established as the one created on the date shown therein by none else than the accused himself. Even otherwise, the said place-Hosur not being far away from Bengaluru where the office of the accused is said to be situated, it is easily possible for the accused to travel from Hosur to Bengaluru either to receive the loan or to deliver the cheque in question. As such also, the oral and documentary evidence of the accused to make out a case of preponderance of probabilities to rebut the presumption formed in favour of the complainant could not be successful in achieving its goal. In addition to the above, though the accused has taken a contention that the cheque was given to one Sri Parthasarathy few years back and that Parthasarathy got the cheque presented through the complainant, but, to substantiate the same, neither the accused has produced any document nor examined said Sri Parthasarathy in his favour - admittedly for several years, the accused has kept quite without taking any action against the said Parthasarathy for alleged withholding of the cheque of the accused by him for no valid reasons. This also creates a doubt in believing the alleged defence of the accused. It is appreciating these aspects in their proper perspective, both the trial Court and the Sessions Judge's Court have held that the complainant has proved the alleged guilt against the accused and that the accused could not able to rebut the presumption formed in favour of the complainant. Accordingly, both the Courts have held the accused guilty of the alleged offence punishable under Section 138 of N.I. Act and confirmed the conviction respectively. The said witness has failed to tender himself for his further cross-examination from the accused side in spite of giving sufficient opportunities to him and also by virtue of the memo filed by the accused seeking discarding the evidence of PW-1, the trial Court and the Sessions Judge's Court ought not to have considered the evidence of PW-1, in which an event, the finding given by them would have been otherwise. As such, the impugned judgments deserves to be set aside, for which purpose, interference in them is warranted by this Court. The Criminal Revision Petition stands allowed.
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