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2017 (9) TMI 1564 - HC - Indian LawsOffence under Section 138 of NI act - issue of cheque and dishonoring - onus to prove debts - Held that:- As has been laid down in Bharat Barrel’s case (1999 (2) TMI 627 - SUPREME COURT), the respondent can rebut the presumption under Sections 139 and 118 of the NI Act by raising a probable defence. The respondent in doing so can either bring in his own evidence or rely upon the evidence submitted by the appellant. In the present case the respondent deposed that he had only received by way of loan from the appellant an amount of ₹ 1,76,000/-. This assertion without any proof is not likely to go very far in raising a probable defence, but the appellant himself admitted that a cheque for the sum of ₹ 1,76,000 and cash ₹ 24,000/- was paid to the respondent, strengthens the defence of the respondent. Even this stand in cross-examination by the appellant is contradictory to the agreement which mentions that loan amount of ₹ 2 lacs includes interest. The fallacy in the appellant’s case is also brought from the fact that the loan agreement mentions that a post-dated cheque for the amount of ₹ 2,00,000/- bearing no.965528 dated 27.12.11 drawn on SBI, Rail Bhawan was handed over to the appellant at the time of execution of the loan agreement but in his complaint as well as in his evidence, the appellant had stated that the said cheque was handed over to him after he raised a demand for repayment of the loan amount to the respondent in December of 2011. The controversy whether a cheque given as security can be brought within the purview of Section 138 of the NI Act does not arise here as a cheque has to be issued for the amount which is due to the holder of the cheque. The various contradictions in the appellant’s version has put a serious doubt as to whether there exists a legally subsisting liability of ₹ 2 lacs in favour of the appellant. The various inconsistencies in the stand taken by the appellant leads the Court to believe that the existence of the liability to be highly improbable. Since the appellant was not able to prove the amount of ₹ 24,000/- allegedly paid by cash to the respondent as loan along with a cheque of ₹ 1,76,000/-, the cheque in question which was for the amount of ₹ 2,00,000/- can in no way be said to have been issued for the legally existing liability of ₹ 1,76,000/-.
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