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2023 (3) TMI 880 - HC - Indian LawsDishonour of Cheque - existence of legally enforceable debt or not - judgment of acquittal is reversed - both the parties undertook the burden to prove on their shoulders - whether the Respondent is successful in rebutting the presumption and whether the Appellate Court was right in reversing the findings of the trial Court? HELD THAT:- The law on the point of drawing of presumption and rebuttal of presumption is well settled. The presumption under Sections 118 and 139 of the NI Act were incorporated in the Act so as to enhance the reliability of negotiable instrument. On the basis of negotiable instruments, parties transfer the amount. Parties trust negotiable instruments. So, in order to boost it, these presumptions are incorporated in negotiable instrument. On one hand, there is a presumption attached to negotiable instrument and on the other hand, the drawer of the cheque is given liberty to rebut it. It is always a subject matter of challenge whether that presumption is rebutted or not. “How it can be rebutted and whether rebuttal of presumption is as onerous as that of complainant” are settled by various interpretations. Only question remains on the basis of facts, can it be said that the presumption got rebutted. The presumption can be rebutted by adducing own evidence or it can be rebutted by challenging the complainant’s evidence. In this case, the similar question has arisen. The trial Court held that the offence is proved, whereas, First Appellate Court concluded that Accused succeeded in rebutting the presumption. The correctness of these findings are the subject matter of challenge before this Court. It can very well be said that the Respondent has made out a probable defence. Facts is of two kinds. One is positive fact and another is negative fact. It is difficult to prove negative fact. Similarly, it is difficult for the Respondent to prove that he has not received the plywood. As against this, it is easy to prove positive fact. So, it was the duty of the Appellant to prove that the plywood was in fact delivered. He has failed to do the same. The facts of case of M/s. Prajapati Oil Industry [2003 (11) TMI 644 - GUJARAT HIGH COURT] can be differentiated. The conviction under Section 138 of NI Act was confirmed upto High Court. Though accused pleaded ‘no receipt of goods as a defence’, he could not substantiate it. The accused has not protested for non receipt of goods. Herein, Accused has stopped payment of cheques and also made his stand clear in notice reply. There is no legally recoverable debt or liability which has accrued in his favour. The Appellate Court was right in concluding that the Respondent has rebutted the presumption. Hence, no case for interference is made out - Appeal dismissed.
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