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2019 (10) TMI 1578 - HIMACHAL PRADESH HIGH COURTDishonour of Cheque - Presumption not rebutted successfully - discharge of legally enforceable debt or not - HELD THAT:- This Court is in total agreement with the complainant that the cheque in question, Ext. CW-1/C was issued by the accused for consideration in discharge of her debt/liability. Since presumption as referred to herein above has not been successfully rebutted by the accused, she rightly came to be held guilty of having committed offences punishable u/s 138 of the Act - Once signatures on the cheque are not disputed rather stand duly admitted, aforesaid plea with regard to cheque having not been issued towards discharge of lawful liability, rightly came to be rejected by learned Courts below. S. 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability - True it is that to rebut aforesaid presumption, accused can always raise probable defence either by leading positive evidence or by referring to material, if any, adduced, on the record by the complainant, but, in the case at hand, accused has miserably failed to raise probable defence, much less sufficient defence to rebut the presumption available in favour of the complainant under Ss. 118 and 139 of the Act. Close scrutiny of material available on record compels this Court to agree with learned senior counsel for the complainant, that there is absolutely no evidence available on record to probabilise the defence so projected by accused that blank cheques were issued to the complainant and one of the cheques has been misused. Mere statement of the accused is not sufficient to prove that the cheque in question has been misused, rather the accused, with a view to rebut the presumption available in favour of the holder, is/was under obligation to prove by leading positive evidence that the cheque in question was issued as a security. Hon'ble Apex Court in M/s. Laxmi Dyechem vs. State of Gujarat, [2012 (12) TMI 106 - SUPREME COURT], has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely upon the material submitted by the complainant. Needless to say, if the accused/drawer of cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, statutory presumption under S. 139 of the Act regarding commission of the offence comes into play. The petition at hand is dismissed being devoid of merit.
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