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2018 (9) TMI 1000 - HC - Indian LawsDishonor of Cheque due to insufficiency of funds - Repayment of loan - Section 138 of Negotiable Instruments Act - existence of legally enforceable debt or not? - Held that:- Admittedly, the petitioner and his mother borrowed a loan on execution of registered mortgage deed of their properties in favour of the respondent and his wife. When it being so, without repaying the same, again on 02.05.2007, the petitioner borrowed a sum of ₹ 7,00,000/- on issuance of post dated cheque for the said sum dated 16.05.2007. It is seen from the notice dated 22.11.2005 issued by the petitioner and his mother to the respondent and his wife, calling upon them not to present the cheques obtained at the time of borrowing the loan viz., in the year 2003 and 2004 for collection as they were not issued in discharging of any liability. The alleged cheques were not issued for any legally enforceable debt. It is also proved from the notice dated 22.11.2005 that the said alleged cheques and other pronotes were obtained by the respondent/complainant at the time of borrowal of loan in the year 2003 and 2004. Therefore, the alleged cheques were not issued by the petitioner for any legally enforceable debt. In such circumstances, the petitioner cannot be subjected to ordeal trial. The complaint cannot be sustained and it is liable to be quashed - petition allowed.
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