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2018 (3) TMI 1907 - HC - Indian LawsDishonor of Cheque - subsisting debt or not in respect of which the cheque was issued by the accused - legally enforceable debt or not - Section 138 of N.I. Act - HELD THAT:- The accused and his family members are carrying on the business of sale of TV, grinders and furniture through Manikanta agencies. This evidence leads to the inevitable inference that the cheque in question was issued by the accused to satisfy the debt or liability due by the Manikanta Agencies in respect of the purchase of TVs grinders and furniture from the complainant. This transaction therefore, brings the case within the expression 'other liability'. In this context, it is also relevant to refer to the suggestion made by the learned counsel for the accused to PW1 in the course of his cross-examination suggesting that the above cheque is issued by the accused in respect of the transaction carried on by Venkataraman Naik - the father of the accused. This evidence is sufficient to hold that the cheque in question was issued by the accused in discharge of other liability. Therefore, it cannot be said that the cheque was issued by the accused without any lawful consideration. Section 138 of the N.I. Act does not debar a person from taking up the liability of another person. It is for this reason, the explanation to Section 138 of N.I. Act defines the expression 'debt' or 'other liability' as a legally enforceable debt or 'other liability'. Further, the presumption under Section 139 of N.I. Act provides that unless the contrary is proved, the holder of a cheque received the cheque for the discharge in whole or in part of 'any debt' or 'other liability'. Therefore, 'any debt' and 'other liability' would also cover the liability of another person as well. There are no hesitation to hold that, in the instant case, the complainant has proved that the cheque in question was issued by the accused in discharge of legally enforceable debt. The said cheque is proved to have been dishonoured for insufficiency of funds. The complainant has complied with all the requirements prescribed under Section 138 of N.I. Act thereby rendering the accused liable for conviction under the said provision of law - accused having admitted the issuance of cheque and the complainant having proved the existence of a legally recoverable debt and also having established the circumstances in which the accused issued the said cheque, the presumption engrafted under Section 139 of the N.I. Act comes into play. The accused has failed to rebut the said presumption with cogent and acceptable evidence. The impugned judgment is set aside. The accused is convicted for the offence punishable under Section 138 of N.I. Act - appeal allowed - decided in favor of appellant.
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