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2018 (8) TMI 2072 - HC - Indian LawsDishonor of cheque - insufficiency of funds - rebuttal of statutory presumption - Section 138 of NI Act - HELD THAT:- The respondent/accused has not disputed the handwriting on the two cheques and has not denied that the signature on the two cheques is of the respondent/accused. The respondent/accused has not denied that the transaction in respect of Plot No. 28 had taken place and the respondent/accused admitted that he had received ₹ 09,00,000/- - the accused only denied that he had not received ₹ 13,60,000/as claimed by the accused. The learned Magistrate should have granted benefit of statutory presumption created by Section 139 of the Act of 1881 and should have rejected the defence of the respondent/accused. The learned Magistrate has committed an error by placing the burden on the complainant to show that the transaction in respect of Plot No. 28 had taken place. The learned Magistrate has further committed an error by delving into the genuineness of the transaction in respect of plot No. 28, when the accused had also not denied the transaction and admitted that he had received ₹ 09,00,000/- towards part payment as per the agreement of sale. The impugned judgments are unsustainable - Appeal allowed - decided in favor of appellant.
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