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2016 (8) TMI 1098 - HC - Indian LawsEligibility of benefit of the presumption under Section 118 of the NI Act - Held that:- Both parties have failed to establish the respective fact asserted. The respondent failed to prove having paid US$ 1,13,829.78 to appellant No.2 and the appellants failed to prove that the cheques were issued as security for payment yet to be received. Therefore, the learned Single Judge has rightly held that circumstances enwombing the facts asserted would be relevant. The appellants admit that the cheques were issued in October, 2002 but claimed that they were towards security for ₹ 53.5 lacs which the respondent had offered to invest with them. As per the appellants the respondent did not invest any money with them. The dates of the cheques which are 11 in number span over one year commencing from December, 2002 and ending on January, 2004. The appellants have to explain as to why they did not write any letter to the respondent informing that since he promised investment had not been made the cheques which were offered as security should be returned. This would be the normal conduct of any person who had issued the cheques in the circumstances pleaded by the appellants. The appellants have failed to render any satisfactory explanation for not having so written to the respondent. We conclude by holding that the respondent would be entitled to the benefit of the presumption in his favour raised under Section 118 of the NI Act, 1881 and since the presumption has not been rebutted, notwithstanding the respondent having failed to prove consideration being paid as claimed by him he would be entitled to the decree passed by the learned Single Judge which we find is with interest @ 9% per annum simple.
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