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2018 (8) TMI 737 - HC - Indian LawsDishonor of Cheque - Section 138 of Negotiable Instrument Act - rebutting of presumption - Held that - In Rangappa v. Sri Mohan 2010 (5) TMI 391 - SUPREME COURT OF INDIA it is held by Hon ble Supreme Court that it is a settled position that when an accused has to rebut the presumption under Section 39, the standard of proof for doing so is that of preponderance of probabilities . Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own . The petitioner accused has presented those facts, i.e., the defence of the petitioner-accused. These facts must be produced before the Trial court then Trial Court will consider all the facts produced by the petitioner accused - Application dismissed.
Issues:
Application under Section 482 of the Code of Criminal Procedure to quash proceedings of Criminal Case No. 2427/2013 under Section 138 of the Negotiable Instrument Act. Analysis: The respondent/complainant filed a case under Section 138, Negotiable Instrument Act, alleging that the petitioner/accused borrowed ?10 lacs and issued a cheque that was dishonored. The Trial Court registered the offence under Section 138 and initiated criminal proceedings. The petitioner claimed innocence, stating that his relative misused cheques after the closure of their business. The petitioner reported the missing cheques to the police and denied issuing any cheque to the complainant. The petitioner sought to quash the criminal case based on these grounds. The petitioner argued that the provisions of the Negotiable Instruments Act were not applicable as he did not issue any cheque to the complainant. The petitioner emphasized that his relative, not him, misused the cheques, leading to the complaint. The petitioner relied on the defense that the complainant's case lacked a legally enforceable debt or liability, as required under the Act. The petitioner presented these facts as a defense to challenge the presumption under Section 139 of the Act. Referring to legal precedents, the court highlighted the need for the accused to raise a probable defense to rebut the presumption under Section 139. The court emphasized that the standard of proof required for the accused to establish a defense is that of 'preponderance of probabilities.' The court noted that the petitioner had presented relevant facts constituting his defense, which should be considered by the Trial Court. Consequently, the court found no grounds for interference under Section 482 of the Code of Criminal Procedure and dismissed the application to quash the criminal case. In conclusion, the court dismissed the Miscellaneous Criminal Case, stating that the petitioner's defense should be presented before the Trial Court for evaluation. The judgment underscores the importance of establishing a probable defense to challenge the presumption under the Negotiable Instruments Act, emphasizing the need for a legally enforceable debt or liability to sustain a complaint under Section 138.
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