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TMI Blog2022 (8) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-company to probabilise that the cheque was issued as security against loan. In the absence of cogent documents it cannot be said that the cheque amounting to Rs. 3,50,000/- was given to the complainant as security. It is also highly improbable as to why a prudent man would hand over high value cheque without any purpose or reason and that too without any receipt or document. It is admitted position that the cheque in question was issued by the petitioner and once it is so, the statutory presumption under section 139 of the Act would arise. The accused can, in contrary, prove non-existence of enforceable debt by raising probable defence. The burden upon the accused of proving the non-existence of enforceable debt can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. Bare denial of the debt apparently does not appear to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving upon the complainant - The presumption mandated by Section 139 of the Act includes a presumption that there existed a legally enforceable debt or liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the balance amount. iii. The opposite party-complainant presented the said cheque in its bank at SBI Sadar Branch, Cooch Behar on 24.03.2011, however, the said cheque was returned dishonoured on the ground of payment stopped by the drawer iv. The opposite party-complainant sent a notice dated 09.04.2011 demanding payment of the amount of the dishonoured cheque. In spite of receipt of the aforesaid notice the petitioner failed to make payment and on the basis of the same the complaint petition was filed and proceeding was initiated before the concerned Magistrate. 3. Upon considering the materials and evidence on record the learned Judicial Magistrate, 1st Court, Sadar Cooch Behar, convicted the petitioner and sentenced him to pay a fine of Rs.7,00,000/-, in default, to suffer simple imprisonment for six months alongwith simple imprisonment for one year and if the fine is paid, then Rs 5,00,000/- will go to the opposite party-complainant, Rs. 1,00,000/- to the State and Rs. 1,00,000/- to D.L.S.A, Cooch Behar. 4. Being aggrieved by and dissatisfied with the aforesaid judgment and order the petitioner preferred an appeal before the learned Sessions Judge, Cooch Beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n two fold grounds; firstly, that the cheque in question was handed over to the complainant as security for loan in relation to purchase of a vehicle and secondly, as no vehicle was ever delivered to the petitioner hence the question of legally enforceable debt of the petitioner towards the complainant does not arise at all. 8.1. As far as the first aspect is concerned it is found from the materials on record that the petitioner has not produced any documents namely loan agreement or receipt of the opposite party-complainant during trial showing the cheque in question to have been delivered to the complainant as security. The petitioner in his letters dated 06.02.2011, 23.01.2011 marked Exhibit D, Exhibit D1 respectively and in reply to the demand notice (Exhibit 3/1) has stated that certain documents were handed over to the complainant and finance agreement was signed by him. In his cross-examination he admitted that he did not file any finance agreement in court. It is not the case of the petitioner that copy of the finance agreement was not delivered to him. In all his communications with the complainant such as letters dated 06.02.2011, 23.01.2011 marked Exhibit D and Exhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat although the ground has been raised that the terms and conditions of delivery of vehicle and process of finance has not been complied with yet there is no such explicit and distinct statement in clear terms that the vehicle in question was not delivered to the petitioner. Hence the petitioner failed to improbabilise that the vehicle was not delivered to him. 8.3. It is admitted position that the cheque in question was issued by the petitioner and once it is so, the statutory presumption under section 139 of the Act would arise. The accused can, in contrary, prove non-existence of enforceable debt by raising probable defence. The burden upon the accused of proving the non-existence of enforceable debt can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. Bare denial of the debt apparently does not appear to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving upon the complainant. In order to disprove the presumption the accused is to bring on record such facts and circumstances which the court may either believe that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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