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2021 (11) TMI 277 - HC - Indian LawsDishonor of Cheque - misuse of disputed cheque - rebuttal of presumption or not - Section 138 of NI Act - HELD THAT:- This Court finds that the respondent no. 2 has specifically averred that the applicant had borrowed money from her through her husband and relatives and for discharging the liability, the disputed cheque was given by the applicant. Much emphasis has been laid on the alleged agreement executed by the applicant and husband of respondent no. 2 to point out that, the cheque was given to husband of respondent no. 2. In the facts of the present case, the respondent no. 2 has specifically averred in the complaint that the money was lent to applicant by her through her husband and relatives. When cheque was presented for the collection, the name of present applicant as payee was written on the cheque. The applicant being a drawer of the cheque, has not denied his signature - It is settled law that once the accused admitted a signature on the cheque in question, the presumption under Sections 118 and 139 of the NI Act is to be drawn in favour of the complainant. Thus, as per Section 118(g) of the NI Act, the holder of cheque is presumed to be holder in due course and accused has to prove that the cheque was not issued to the complainant. The present complaint is maintainable by the payee of the cheque, i.e. respondent no. 2. Whether she is not holder in due course of the cheque in question, is an aspect which cannot be pre-judged at this initial stage and is required to be considered after the evidence is recorded. Defence regarding legally enforceable liability or debt cannot be examined at this stage. The issue raised by the applicant in the present petition requires evidence, which cannot be appreciated, evaluated or adjudged by the High Court under the powers vested under Section 482 of the Code. There is no any error or infirmity in the view taken by the revisional court as well as the trial Court while issuing the process - Petition dismissed.
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