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2016 (11) TMI 1706 - HC - Indian LawsDishonor of cheque - insufficiency of funds - rebuttal of presumption - existence of debt/liability or not - HELD THAT:- It is a settled position of law that the presumption under section 139 of the N.I. Act postulates that whenever a cheque or negotiable instrument is issued in favour of the other side, then the Court can presume that it was issued in discharge of existing liability. It is true that there is no presumption as to the existence of debt or liability and it is to be proved by the complainant before the floor of the Court. This Court on scrutiny of the evidence on record both oral and documentary, considering the judgment of the Trial Court and the First Appellate Court and also the agreement advanced is satisfied that the approach of the First Appellate Court to reverse the order of conviction was not in conformity with the legal position as decided by this Court in NITA KANOI VERSUS PARIDHI AND ORS. [2015 (1) TMI 1471 - CALCUTTA HIGH COURT]. This Court is not willing to answer the point as to whether the interest or damages claimed was usurious as it was not a point either before the Trial Court or before the First Appellate Court. Appeal allowed - decided in favor of appellant.
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