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2021 (12) TMI 354 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - existence of legally enforceable debt or not - rebuttal of presumption - HELD THAT:- It appears that a complaint filed under Section 138 of the N.I.Act by the respondent No.2 was registered as Criminal Case No. 2208 of 2017. That, process was issued under section 204 of the Code of Criminal Procedure by the learned trial Court, as per order passed below Exh. 1 on 15th September, 2017. It is not in dispute that the cheque was issued by the present applicant under his signature in favour of respondent No.2 on 24th April, 2017 for the amount of ₹ 60,000/- which is produced at page 19. It was not in dispute that the cheque was returned back by the bank authority on account of “insufficient fund” by return memo dated 10th July, 2017. Once, the accused has admitted the issuance of the cheque which bears his signature, there is presumption that there exists a legally enforceable debt or liability under Section 139 of the N.I.Act. However, such a presumption is rebuttable in nature and the accused-applicant is required to lead the evidence to rebut such presumption. The applicant was required to lead evidence that the entire amount due and payable to the complainant was paid. Considering the fact that the applicant-accused has admitted the issuance of the cheque and his signature on the cheque and that cheque in question was issued for security purpose as well as the amount was paid by him. There is a presumption under Section 139 of the N.I.Act that there exists a legally enforceable debt or liability. Of course, such presumption is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, two receipts are produced by the accused applicant which requires to be proved by him with cogent evidence in trial. The story put forward by the applicant-accused that the cheque was given by way of security is not believable at this juncture to rebut the presumption. This application deserves to be dismissed and dismissed.
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