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2021 (12) TMI 66 - HC - Indian LawsDishonor of Cheque - existence of legally enforceable liability upon the petitioner or not - cheque in question had been issued in discharge of any legal liability or not - drawing of presumption or not - Section 138 of NI Act - HELD THAT:- Though the complainant during her cross-examination has not been able to state anything regarding the income of her husband and has even feigned ignorance about the Income Tax Returns, but the complainant, who is a widow, may not be knowing about the financial details of her husband and may not be having access to income tax record maintained by her late husband. In any case, even if it is presumed that the amount advanced by the complainant's husband to the petitioner was not shown in the Income Tax Return, the same itself would not wash off the liability of the loanee (petitioner) to repay the loan amount when there is nothing to doubt the factum of issuance of cheque and the story put forth by complainant regarding loan having been advanced by her late husband. The facts of the present case do make out for drawing a presumption as regards the existence of a legal liability in terms of Section 139 of the Act particularly when there is nothing on record to rebut the same. There is a mandate of presumption of existence of liability and upon proof of issuance of cheque the onus shifts to the accused/petitioner to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the Act. In the instant case, the petitioner has only recorded his statement under Section 313 Cr.P.C. and has not adduced any evidence to rebut the presumption that the cheque was issued for consideration - Once the facts on record remained unrebutted with no substantive evidence of defence of the petitioner to explain the incriminating circumstances appearing in the complaint against him, no error can be said to have been committed by the Courts below. There is certainly no evidence to show that the body writing on the cheque in question is in a different hand or ink and has been made by a person other than the person, who had signed on the cheque. But, that as it may, even if there is any such difference in hand-writing, the same would be immaterial once the signatures on the cheque in question are not disputed - Hon'ble the Supreme Court in BIR SINGH VERSUS MUKESH KUMAR [2019 (2) TMI 547 - SUPREME COURT], has held that if a signed blank cheque is voluntarily presented to a payee towards some payment, the payee may fill up the amount and the other particulars and that such difference in hand-writing ipso-facto would not invalidate the cheque or render its authenticity doubtful. This Court does not find any infirmity in the findings recorded by the trial Court and as upheld by the lower Appellate Court and the same, thus, do not warrant any interference - Revision petition dismissed.
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