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2017 (9) TMI 1198 - HC - Indian LawsDishonor of cheques - Case for an offence under Section 138 of the Negotiable Instruments Act - proof of legally enforceable debt - Held that:- The materials on record would clearly establish that the respondent has raised a probable defence. Once the presumption under Section 139 of Negotiable Instruments is rebutted, it is for the complainant to prove that he has lent ₹ 4,00,000/- on 17.07.2012 as claimed by him. It is true that the respondent has not sent any reply to the legal notice Ex.P5. However, that alone is not sufficient to accept the case of the complainant that he has lent ₹ 4,00,000/- on 17.07.2012 to the respondent. ₹ 4,00,000/- is not a small amount. It is significant to note that no interest was charged and the cheque was only for ₹ 3,50,000/-. It is impossible to believe that the complainant lent ₹ 4,00,000/- without requiring presence of any witness. The Hon'ble Supreme Court in KRISHNA JANARDHAN BHAT vs. DATTATRAYA G. HEGDE [2008 (1) TMI 827 - SUPREME COURT ] has held that Courts have to take notice that ordinarily in terms of Section 269-SS. Income Tax Act, any advance taken by way of loan of more than ₹ 20,000/- had to be made by an account payee cheque only. In the light of the observations of the Hon'ble Supreme Court, it can be safely concluded that the complainant has not proved that the cheque in question was issued for the discharge of legally enforceable debt. The appellant has not proved his case for an offence under Section 138 of the Negotiable Instruments Act. The Trial Court has taken a possible view on the basis of the materials and I do not find any valid reason to differ from the view taken by the Trial Court.
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