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2021 (9) TMI 775 - HC - Indian LawsDishonor of Cheque - discharge of enforceable debt or not - rebuttal of presumption or not - only point involved in this case is that the cheque itself was not issued in discharge of any liability and accordingly, one of the basic ingredients of the offence under Section 138 of the Negotiable Instruments Act was not at all satisfied - HELD THAT:- The Complainant's son was trying to change his transporting business after selling his trucks and about this, the petitioner had knowledge and so the petitioner came in contact with the Complainant side and offered his son to participate in a new business and after being convinced, the Complainant spent a huge amount in the business of the petitioner by his selling trucks, but on asking to repay the benefits of the share, the petitioner issued a post dated cheque bearing no. 831577 dated 15.08.2006 for a sum of ₹ 24,344/- in favour of the Complainant. On presentation of the cheque on 7.09.2006, 19.09.2006 and also on 18.10.2006 with the consent of the petitioner, the same was dishonoured due to being not arranged for. The further case of the Complainant was that the petitioner was informed in respect of the payment of the bounced cheque amount, but he did not pay the same. The Complainant sent a legal notice to the petitioner on 31.10.2006 by registered post and also by courier service, but the petitioner did not pay the said amount and ultimately, the Complaint case was filed. This Court finds that C.W.-2 is the Complainant who has stated that the petitioner had issued Cheque No.831577 dated 15.08.2006 for a sum of ₹ 24,344/- in his favour and he identified the writing and signature of the petitioner which was marked as Exhibit-1. On presentation, the cheque was not encashed and it was dishonoured. He identified the bank return memos which were marked as Exhibits- 2, 2/1 and 2/2 respectively - This Court finds that all the witnesses examined on behalf of the Complainant have clearly stated about the dishonour of the cheque, the return memo, legal notice, etc. Any debt or liability could not be disproved by the defence. In this case, the learned trial court found that the said cheque was issued by the petitioner in favour of the Complainant for discharging his debt, but the same was returned by the bank unpaid because of insufficient fund which falls under the purview of the Section 138 of the Negotiable Instruments Act. This Court finds that the learned appellate court also recorded that all the basic ingredients for offence under Section 138 of the Negotiable Instruments Act were satisfied and accordingly conviction of the petitioner was upheld. This Court finds that both the learned courts below have appreciated the evidences on record and have rightly considered the provision under Section 139 of the Negotiable Instruments Act while upholding conviction of the petitioner under Section 138 of the Negotiable Instruments Act. This Court also finds that all the basic ingredients for filing the Complaint case for offence under Section 138 of the Negotiable Instruments Act were duly satisfied. There is no illegality or perversity in the impugned judgments of conviction and order of sentence of the petitioner. Petition dismissed.
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