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2015 (6) TMI 1267 - DELHI HIGH COURTDishonour of cheque - pronote was signed by the witnesses in his presence or not - rebuttal of presumption - HELD THAT:- It is settled law that it would not be open to this Court to set aside an acquittal unless the judgment of the acquittal under appeal appears to be perverse, or based on misappreciation of the evidence. Assuming, that the cheque had been handed over to the complainantappellant in blank by the respondent, the purpose was to enable the appellant to encash it, in the event that the loan was not repaid. Thus, the respondent gave an implied authority to the complainant-appellant to fill up the cheque and encash it - Similarly, once the pronote has been signed and executed by the respondent admittedly, it acts as an acknowledgment of the transaction. The accused-respondent has not been able to produce any evidence in his support that the pronotes had been executed for a loan of only Rs. 50,000/-. It is settled law that the burden to rebut the presumption under Section 139 NI Act is on the accused. The burden on the accused to rebut the presumption is only to the extent of “preponderance of possibilities”, whereas the complainant has to prove its case beyond reasonable doubt. It has also repeatedly been observed that the accused can rely on the evidence brought on record by the complainant to rebut the presumption, and it is not necessary that he has to lead separate/direct evidence. However, in the present case, the accused-respondent has not been able to rebut the presumption of the cheque having been issued for consideration of the amount reflected in the cheque, in the face of the pronotes. The accused is obliged to set up a probable defence. The defence cannot be only a “possible” defence. It cannot be premised on the mere ipse dixit of the accused. There should be some credible material or circumstance available on record which should lead the Court to conclude that the defence/explanation for issuance of the dishonoured cheque is a probable one. For the reasons aforesaid, the findings and conclusions drawn by the learned MM on facts is palpably wrong, and it is also based on an erroneous view of the law. The impugned judgment is set aside. The accused is convicted of the offence under Section 138 of the NI Act - Petition allowed.
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