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2018 (11) TMI 1936 - HC - Indian LawsDishonour of Cheque - insufficient funds - Misuse of cheque - rebuttal of presumption u/s 118 and 139 of NI Act, 1881 - HELD THAT:- It is not a case of the respondent that cheque was not issued in favour of the appellant. As per case of the respondent earlier he borrowed Rs.4,00,000/- from the appellant in the year 2003 which was returned by him and he had drawn four cheques for that loan amount and one cheque is misused by the complainant/appellant for filing this complaint. As per Section 146 of the Negotiable Instruments Act, 1881, the Court shall, in respect of every proceeding under this Chapter, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved. As the bank's slip is not disproved by the respondent, it is clearly established that cheque is dishonoured for insufficient fund. The cheque was issued by the Bank of Baroda in the present case and it was submitted before the same Bank. The purpose of enactment of the Act, 1881 is to maintain confidence of Bank transactions. It is clearly established that the cheque was issued to clear the liability of the year 2005 and therefore, argument advanced on behalf of the respondent regarding no transaction took place between the parties after 2003 is not sustainable. Again, cheque is presented before same Bank which issued the cheque and it is not a case where any manipulation is done in the said cheque. When even after notice the respondent did not pay the amount, the appellant had no option but to file criminal complaint case against the respondent as envisaged under Section 138 of the Act, 1881. Finding arrived at by the trial Court is not sustainable. The respondent is convicted for offence under Section 138 of the Negotiable Instruments Act, 1881 and awarded sentence of fine to the tune of Rs.3,00,000/- - the appeal is allowed reversing the acquittal.
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