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2020 (3) TMI 138 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - acquittal of respondent for the offence under Section 138 of the Negotiable Instruments Act, 1881 - rebuttal of presumption - HELD THAT:- As per Section 139 of the Negotiable Instruments Act,1881, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. It is not a case of the respondent that he has not signed the cheque. A meaningful reading of the provisions of the Act, 1881 makes it ample clear that the person signed the cheque over to a payee remains liable and he may adduce any evidence to rebut presumption. Presumption will live, exist and survive and shall end only when contrary is proved by the accused/respondent. The trial Court recorded finding that there is no specific evidence that on which date loan was advanced, therefore, advancement of loan is not established. In view of this Court, finding arrived at by the trial Court is against the legal aspects of the matter. When the respondent himself has not deposed before the trial Court that he has not borrowed money from the appellant, presumption under Section 139 of the Act, 1881 will survive and remain exist and corroboration to the statement of the appellant is not required. On an overall assessment, it can be said that the finding of the trial Court is against the weight of the evidence and the same is not legal and contrary to the provisions of the Act, 1881, therefore, argument advanced on behalf of the respondent is not sustainable. The act of the respondent falls within mischief of Section 138 of the Act, 1881 - espondent is convicted under Section 138 of the Act, 1881 - appeal allowed.
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