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2018 (8) TMI 1406 - HC - Indian LawsDishonor of cheque - Section 138 of the Negotiable of Instrument Act - The only contention of the respondent/accused was that the respondent has paid the cheque amount to the complainant - Held that:- The provision of Section 139 of the Negotiable Instrument Act, provides for presumption clause, but this presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability and that is a rebuttable presumption - It would be appropriate to mention here that the respondent accused did not disclose that he has paid the amount in his reply to the notice issued to the respondent under Section 138 of the Negotiable Instrument Act. It would also be appropriate to mention that virtually no such reply has been filed by the respondent-accused. He has not asked any single question to the complainant, at the time of his cross-examining regarding Ex.D/2, nor he confronted the same. In the present case, there is no supportive evidence and when the accused/respondent did not disclose document Ex.D/2 till the same was filed at the defence stage. No reasonable explanation was offered to explain why the document was not produced or pleaded earlier. It would be unsafe to exercise the power of discretion in favour of the respondent-accused, whereas the hand writing expert examined by the complainant has clearly indicated and opined that Ex.D-2 receipt do not contain the signature of the complainant. It would be appropriate to hold that learned appellate Court has fallen in error to hold that Ex-D/2 receipt has been issued by or executed by the complainant - The judgment and sentence passed by learned J.M.F.C., Jabalpur is restored with the modification that the complainant-applicant is entitled for compensation of (Rs.1,50,000/- x 9% x 14 years = ₹ 1,89,000/- + 1,50,000/-) ₹ 3,39,000/- under Section 357 of Cr.P.C. Revision allowed.
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