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2013 (1) TMI 21 - HC - Indian LawsSection 138 of the Negotiable Instruments Act - Presumption under Section 139 of the N.I. Act - Legally enforceable debt - The accused approached the complainant through his wife and obtained a hand loan of Rs.1,90,000/- for settlement of the debts - With a promise to repay the same within six months - In spite of several demands, the accused began dodging - Accused in the presence of said Dharma Reddy gave a cheque bearing No.384351 drawn on State Bank of Hyderabad The said cheque was deposited in the complainant's account but the same was returned on 02.11.1998 with an endorsement of insufficient funds and party reported to stop operations in the account - Complainant re-deposited the said cheque on 20.11.1998, again the said cheque was returned with the same endorsement - Complainant came to know that a lawyer's notice was appeared in Vaartha newspaper on 12.10.1998 with regard to transfer of said property in the name of her daughter - Section 251 of Cr.P.C Held that:- The presumption, which is available u/s 139 of the N.I. Act can be rebutted by producing necessary evidence or he can also rely upon the evidence produced by the complainant and the material available on record without examining himself. The burden can be discharged by the accused on the basis of preponderance of possibilities. Applicant further deposed that the accused has executed a bond on her own hand writing after receiving the said amount and in the cross- examination he has deposed that the said bond was returned by the complainant one week or ten days prior to the issuing Ex.P-1 cheque. No prudent man would return the bond executed by the borrower without obtaining the cheque in lieu of said bond and more particularly when there is a dispute with regard to the property The accused was working as a teacher as on that date and if really she has issued a cheque for Rs.1,90,000/- she would have written the blanks in the said cheque with her own hand writing. Thus, the complainant has scribed the same in his hand- writing supports the contention of the accused that she issued two blank cheques in favour of Ushodaya Finance Company. The above circumstances create a doubt with regard to lending of the money by PW.1 to the accused and the accused issued the cheque in favour of the complainant. Thus, the accused by relying upon the evidence produced by the complainant could able to rebut the presumption available u/s 139 of the N.I. Act by preponderance of possibilities. In favour of respondent
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