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2015 (7) TMI 1392 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - rebuttal of presumption - material defence of the first respondent was that the cheque does not bear her signature - Sections 118 and 139 of NI Act - HELD THAT:- Admittedly, the appellant had retired from the school when various advances of the amounts from June 2006 is said to be made to the first respondent on a specious ground that the first respondent was known to the appellant, as she was the husband of the headmaster of the school, where the appellant was earlier serving. It has come in the evidence of PW1 that there was no business transaction as such between the appellant and the first respondent and for the matter of that, between the appellant and Avdhuth Kakodkar, the husband of the first respondent. It is not even the case that Avdhuth Kakodkar had at any time approached the appellant with a request for financial accommodation - It is really difficult to accept that the appellant would advance these amounts without there being anything in writing and without there being any agreement to pay interest and particularly, when on his own saying, he continued to advance the amount, although the amounts paid earlier, were not repaid. One of the material circumstances to be established in a prosecution of the present nature is that the cheque should have been shown to be issued in discharge of a legally enforceable debt or liability. The existence of such a promissory note by the first respondent was a material circumstance and would have found place in the notice as well as the complaint. However, that is lacking. It is trite that presumption under Sections 118 and 139 of the Act can arise only where the signature is admitted. In the present case, it appears from the cross-examination of PW1 that the first respondent had disputed her signature on the cheque. It cannot be gainsaid that the first respondent had not made any attempt to get the documents examined. The fact remains that the appellant had himself made an application for sending the document to the forensic laboratory - the observations herein pertain to the complaint under Section 138 of the Act, and the issues which arise thereunder. If the appellant has taken recourse to any other legal remedy for recovery of the amount, the same shall be decided on its own merits, without being influenced by any of the observations herein. Appeal dismissed.
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