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2020 (10) TMI 1175 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - offence punishable under Section 138 of the Negotiable Instruments Act - Whether the impugned order of conviction and sentence passed by the trial Court and confirmed by the First Appellate Court against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act suffer any illegality, impropriety or incorrectness? HELD THAT:- There cannot be any dispute that once the issuance of the cheque and signature of the accused on the cheque are admitted, the presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued towards discharge of legally recoverable debt arises. Then the burden shifts to the accused to rebut the said presumption by acceptable evidence. The accused/DW.1 in his cross-examination has uneqivocally admitted that the notice - Ex.P3 was served on him. If Shivanna and the complainant colluded with each other to commit fraud on the accused and presented the cheque which contains huge amount, in the ordinary course at the first instance the accused should have replied Ex.P3 denying the contents or his liability. Thereby, there was a deemed admission of the contents of the notice. That circumstance went against the accused - Either by way of reply to the notice or in the cross-examination of PW.1, there was no denial of lending capacity of the complainant. Even in the evidence of the accused, there was no denial of the lending capacity. Therefore, the contention of the learned counsel for the petitioner regarding the lending capacity is apparently untenable. Considering the material on record and the judgment of the Hon'ble Supreme Court in RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT] regarding the presumption under Section 139 of the Negotiable Instruments Act, the Trial Court rightly rejected the defence of the accused and convicted him. Revision dismissed.
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