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2021 (4) TMI 34 - HC - Indian LawsDishonor of Cheque - rebuttal of presumption - offence punishable under Section 138 of the Negotiable Instruments Act - whether the first respondent could rebut the presumption? - HELD THAT:- After revisiting the evidence, the answer should be in negative. From the very outset, she had been taking a negative attitude. Even though the lawyer notice was tendered in her correct address, she refused to receive the same. It is a matter of adverse inference. Her first expression of the transaction had come up when the power of attorney holder, PW1 was cross examined. Then she took the stand that the document was given in consideration of ₹ 20,000/-, borrowed by her, that the said amount has already been repaid - The case of PW1 is that the appellant had lent the amount to the first respondent on his assurance. Whatever it may be, once the signature in Ext.P1 stands admitted, it is for her to rebut the presumptions; that has not been attempted. It is trite that the burden of proving a plea of discharge is on the person who raises the contention. Particulars of such repayment are lacking. It also does not stand the reason that, in spite of repaying the amount, she had not taken steps to get back the document alleged to have given as security - The learned counsel for the first respondent argued that the appellant is a fictitious person, such a person is not available and everything was stage managed by PW1. It is true that the first respondent has taken such a plea. But when she was examined as DW1, at the beginning stage itself she has stated that she knew the complainant. After taking such a stand in her chief examination, she cannot be heard to take a contention challenging the identity of complainant. Ext.P1 cheque can be found to be issued in discharge of a legally enforceable liability as seen on its face value. The presumptions available in favour of the complainant are not rebutted. That would attract the offence under Section 138 of the Act. That means the finding of the lower appellate court acquitting the first respondent cannot be sustained - Appeal allowed - decided in favor of appellant.
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