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2015 (6) TMI 1249 - HC - Indian LawsDishonor of Cheque - discharge of a legally enforceable debt / liability or not - section 138 of NI Act - HELD THAT:- In the present case, the first respondent has admitted the signature on the cheque. The defence is that it was given as a security and not against any legally enforceable liability of the nature as stated by the appellant. The learned Magistrate has considered the evidence led by the parties, in order to see whether the presumption under Section 139 of the Act stands rebutted from paragraph 48 onwards of the judgment. It has been found that the first respondent has shown on preponderance of probability that payment of cheque drawn on ICICI Bank was discontinued in the year 2007. The first respondent had come with a specific case that the accounts were settled on 23/06/2008 when the outstanding was Rs. 1,10,928/- and the reconciliation statement is produced at exhibit 68/c. Although the learned Magistrate had found on comparing of the signature that the statement exhibit 68/c bears the signature of the representative of the appellant, which is comparable to the invoices produced at exhibit 7/c, however, has not based her finding on the reconciliation statement. In my considered view, the defence set up by the first respondent at the very inception, when he issued the reply to the notice on 31/12/2009, appears to be credible and probable. The appellant had failed to establish on the basis of acceptable evidence that on 31/03/2009, an amount of Rs. 2,92,212/- was due and outstanding against the first respondent. The finding recorded by the learned Magistrate is a plausible view, recorded on appreciation of oral and documentary evidence on record and it is not shown that the view taken by the learned Magistrate is either perverse or is an impossible view. Appeal dismissed.
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