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2015 (9) TMI 1068 - HC - Indian LawsOffence under Section 138 of the Negotiable Instruments Act - Dishonor of cheque due to insufficient funds - Held that:- Once the issuance of the cheque has been admitted, the appellant/complainant is entitled to invoke presumption under Section 118 and 139 of the Negotiable Instruments Act that the cheque has been issued for discharging the legally subsisting liability. The said presumption is a rebuttable one and so, the burden is upon the respondent/accused to prove that the cheque was not issued for discharging the legally subsisting liability but only as a security. Whether the respondent has rebutted the presumption - Held that:- It is admitted that the respondent has borrowed ₹ 35 lakhs and that amount was also shown in the Income Tax returns. Further, when a suggestion was posted to the appellant that at the time of borrowal of money, blank cheques were issued which was subsequently filled up and complaint has been filed was denied by him. - respondent herein has not rebutted the presumption invoked under Section 139 of the Negotiable Instruments Act. Further, he has not probabilised his defence. Hence, the onus does not shift to the complainant. Hence, I am of the view that the cheque has been issued for discharging the legally enforceable debt. When the cheque was presented for encashment, it was returned as 'insufficient funds' on 11.09.2002. Hence, statutory notice has been issued to the respondent on 14.09.2002. However, the same was returned as could be evidenced by the return cover and postal receipt. Since the respondent/accused neither repaid the amount nor sent any reply, the appellant herein had preferred a complaint. In such circumstances, I am of the view that the appellant herein has proved the guilt of the accused under Section 138 of the Negotiable Instruments Act. The respondent/accused is convicted for the offence under Section 138 of the Negotiable Instruments Act.
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