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2020 (4) TMI 412 - HC - Indian LawsDishonor of Cheque - failure to prove the ingredients of “giving notice” as required under Section 138 of the N.I. Act - existence of legally enforceable debt or not - rebuttal of presumption - Section 139 of the N.I. Act - HELD THAT:- From the provisions of Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1872 it manifests that once Notice is served by registered post by correctly addressing it to the drawer of the Cheque, the service of Notice is deemed to have been effected. In such a circumstance the requirements of Proviso (b) of Section 138 of the N.I. Act stands complied if the Notice is served in the manner prescribed therein. The object of these provisions are to ensure that unscrupulous drawers of Cheques are unable to avoid service of the statutory Notice by leaving their homes for sometime, and thereby evade prosecution. No deficiency emanates on the part of the Appellant for having issued Notices to the Respondent in his admitted address and it therefore concludes that the Notices having been sent to the Respondent’s correct address were duly served, fulfilling the requirement of “giving Notice,” contrary to the finding of the learned trial Court. Legally enforceable debt or not - HELD THAT:- In view of the contents in Exhibit 1 there is a clear admission by the Respondent of his liability to repay the amounts mentioned in the document. There is no escaping the fact that it was a legally enforceable liability. The issuance of three post dated Cheques by the Respondent further endorses this circumstance. The argument of learned Counsel for the Respondent that the Appellant is a Government servant hence the source from where he afforded ₹ 42,00,000/- only, has not been indicated was never raised in the evidence of the Respondent and for the first time finds place only in Appeal. Rebuttal of presumption - HELD THAT:- The presumption under Section 139 of the N.I. Act is an extension of the presumption of Section 118(a) of the Act. If the negotiable instrument happens to be a Cheque, Section 139 raises a further presumption that the holder of the Cheque received the Cheque in discharge in whole or in part of any debt or other liability. Section 118 of the N.I. Act uses the phrase “until the contrary is proved,” Section 139 of the N.I. Act provides “unless the contrary is proved.” Section 4 of the Evidence Act which defines “may presume” and “shall presume” makes it clear that presumptions to be raised under the aforestated provisions are rebuttable. This Court is conscious and aware that interference against an acquittal recorded by the learned trial Court should be rare and in exceptional circumstances, however it is open to the High Court to reappraise the evidence and the conclusion drawn by the learned trial Court to consider whether the Judgment of the learned trial Court can be stated to be perverse. The word “perverse” has to be understood in law as defined to mean “against the weight of evidence.” From the discussions it is held that the findings arrived at by the learned trial Court are perverse and erroneous. Appeal allowed - decided in favor of appellant.
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