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2018 (7) TMI 443 - HC - Indian LawsSuit for recovery of loan amount - Dishonor of Cheque due to insufficiency of funds - repayment of money lent by the applicant to his neighbor - Section 138 of the NI Act - the complaint filed by the present appellant under Section 138 of the NI Act was dismissed by the learned trial Court on the ground that as on the date when the cheque in issue i.e. cheque which was dishonoured by the bank concerned, was issued by the accused in favour of the complainant, there was no legally enforceable debt. Held that:- In the present case, undoubtedly the alleged loan was lent to the accused on 31.08.1999 but it is a matter of record that in lieu of discharge of the said debt, accused had handed over a cheque to the complainant on 28.02.2006. In fact, in my considered view, when in lieu of the loan which was so advanced by the complainant to the accused in the year 1999, as cheque was issued by the accused to the complainant in the year 2006, the same amounted to the accused having acknowledged the said debt and in fact, a fresh cause of action accrued from that particular date in favour of the complainant to recover the said amount from the accused - This very important aspect of the matter has not been correctly appreciated by the learned trial Court because it is not understandable as to how issuance of cheque in lieu of that debt was not to be construed as acknowledgment of debt. It is evident and apparent from the material on record that there was a legal and enforceable debt or liability in favour of the complainant, in lieu of which, the cheque in question was issued by the accused to the complainant, dishonouring of which led to filing of the complaint under Section 138 of the Negotiable Instruments Act. Findings to the contrary returned by learned trial Court are perverse being contrary to the records and further being based on conjectures and surmises. The case is remanded back to the learned trial Court with a direction that the same be adjudicated afresh on merit - appeal allowed.
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