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2015 (2) TMI 1390 - HC - Indian LawsDishonour of Cheque - Failure of rebuttal of presumption - section 139 of NI Act - HELD THAT:- Admittedly, the cheque has been signed by the accused. The complainant had sent statutory notice dated 14/08/2007 to the accused wherein it was specifically mentioned that the accused had borrowed the said amount of ₹ 22,500/- and towards the repayment of the said amount, had issued the said cheque for the amount of ₹ 22,500/-. The accused was called upon to pay the cheque amount within the period of 15 days from the date of receipt of notice. There is a copy of legal notice and the A.D. Card on record. Mere denial that such a notice was received by the accused, is not sufficient to prove that the notice was not received by him. The accused did not send any reply to the said notice thereby denying the averments made therein. Hence, adverse inference is bound to be drawn as against the accused. In his cross-examination, PW1 specifically stated that the details in the cheque were recorded by the accused. In the case of "Avon Organics Ltd." [2003 (7) TMI 745 - ANDHRA HIGH COURT] admittedly, the accused had issued a blank cheque without mentioning the date and amount to the appellant. Therefore, there was absolutely no dispute that a blank cheque was given by the accused to the complainant. The High Court held that filling up the amount portion in words and figures and put date of his own choice by the complainant amounts to alteration and such alteration cannot be done without the consent of the accused. The above judgment is not applicable to the present case. In the case of HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE [2001 (7) TMI 1172 - SUPREME COURT], the Apex Court has held that it is obligatory upon the Court in terms of Sections 138 and 139 of the N.I. Act, to raise the presumption in every case where the factual basis of the raising of presumption has been established. Thus, it can be said that once the execution of the cheque was admitted by the accused, it was for him to first rebut the presumption arising out of Section 139 of the N.I. Act. It was for him to prove that the contents of the cheque, except the signature, were filled in by the complainant without his consent. In the present case, the accused has not taken any probable defence which could rebut the said presumption. As has been rightly observed by the learned C.J.M., the accused, during the cross-examination of PW1, has only resorted to denial of the statements made by the complainant in his affidavit in evidence. Mere denial was not sufficient to rebut the presumption that had arisen in favour of the complainant. The Lower Courts have rightly dealt with the matter and have held the accused guilty of the offence punishable under Section 138 of the N.I. Act - there are no jurisdictional error committed by the Lower Courts - the Revision Application is dismissed.
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