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2015 (3) TMI 1282 - HC - Indian LawsDishonoring of cheques - Entitlement to invoke presumption u/s 118 and 139 of Negotiable Instruments Act - judgment of acquittal challenged - Held that:- Once the presumption under Section 139 of Negotiable Instruments Act has been rebutted by the respondents/accused, then only the onus is shifted to the complainant to prove that the cheque has been issued for discharging legally subsisting liability.But the Trial Court has not considered the same. Non-application of legal proposition and also factual mis-appreciation leads to perversity of the judgment.So, the judgment of acquittal passed by the Trial Court is perverse and it is liable to be set aside. Since the issuance of cheque and signature in the cheque is admitted, the appellant is entitled to invoke presumption under Sections 118 and 139 of Negotiable Instruments Act that the cheque has been issued for discharging legally subsisting liability.Even though it is a rebuttable presumption, the presumption has not been rebutted by the respondents/accused.So, the onus is not shifted from the respondents to the appellant.Therefore, the appellant has proved that having fully known that he has no sufficient funds in his account, the respondent has issued the cheque. Hence, the respondents 1 to 3 are guilty under Section 138 of Negotiable Instruments Act and the judgment of acquittal passed by the Trial Court is hereby set aside.
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