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2023 (4) TMI 592 - HC - Indian LawsDishonour of Cheque - existence of legally enforceable debt and liability or not - non-service of notice - burden to prove - Sections 118 and 139 of NI Act - HELD THAT:- In complaint under Section 138 of N.I. Act, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. The applicant being holder of cheque and the signature appended on the cheque having not been denied by the Bank, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, the service of notice is deemed to have been effected at the time, at which the letter would have been delivered in the ordinary course of business - In the judgment of the Apex Court in the case of M/S. AJEET SEEDS LTD. VERSUS K. GOPALA KRISHNAIAH [2014 (8) TMI 464 - SUPREME COURT], the Apex Court has held that absence of averments in the complaint about service of notice upon the accused is the matter of evidence. In view of the settled legal position, it is clear that at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold and the factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court. All the submissions made by learned counsel for the applicant is disputed questions of fact. Therefore, when the facts have to be established by way of evidence, this Court while exercising the powers under section 482 of Cr.P.C., cannot interfere with such proceedings. Hence, no grounds are made out for quashing of the proceedings under section 138 of the Negotiable Instruments Act. This Court finds that there is no illegality or infirmity in the summoning order dated 21.01.2021 passed by the concerned court below - application dismissed.
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