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2023 (11) TMI 671 - HC - Indian LawsDishonour of Cheque - discharge of legally enforceable debt or not - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- As the mode of advancing the amount to the revision petitioner was not a circumstance appearing in evidence against the revision petitioner, absence of a question in the 313 examination regarding the mode of payment will not in any way vitiate the trial. The revision petitioner if wanted to rebut the presumption under Section 139 of the N.I Act, he should have adduced cogent evidence for disproving the entry dated 27.09.2006 in Ext.P6 document. It is true that, the revision petitioner can even rely on the materials submitted by the complainant/1st respondent, in order to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, without adducing separate evidence of his own. In the case on hand, the materials and evidence on record adduced from the side of the 1st respondent are not capable of rebutting the presumption, in favour of the revision petitioner even by preponderance of probabilities. So he was bound to adduce evidence of his own so as to rebut the presumption but it was not done. Since the presumption stands unrebutted, this Court has to hold that, the appellate court rightly upheld the conviction of the revision petitioner under Section 138 of the N.I Act, and sentenced him to undergo imprisonment till rising of the court and to pay fine of Rs. 4 lakh and in default to undergo simple imprisonment for two months, with a further direction that if the fine amount is realised, it will be paid to the 1st respondent as compensation under Section 357(1) of Cr.P.C. The revision petition is dismissed, upholding the impugned judgment in Crl. Appeal No. 213 of 2009. The revision petitioner is directed to surrender before the trial court on or before 28.11.2023 to receive the sentence and to pay the fine amount. In default, the trial court has to issue arrest warrant against the revision petitioner for executing the sentence.
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