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2022 (1) TMI 804 - HC - Indian LawsDishonor of Cheque - funds insufficient - legally enforceable debt or not - rebuttable presumption or not - Section 139 of the Negotiable Instruments Act - HELD THAT:- It is a well settled position of law that, once the execution of the cheque is admitted, there is presumption under Section 139 of the Negotiable Instruments Act as to the existence of legally enforceable debt. However, the said presumption is a rebuttable presumption and if the accused is able to show from the evidence that the amount mentioned in the cheque does not reflect the actual amount legally due to the complainant, the said presumption shall stand rebutted. In such event, the burden to establish the existence of a legally enforceable debt shall stand shifted to the complainant. In this case, by virtue of the difference in the amount presumably due to the addition made by the appellant towards interest at the rate of 24%, there is a shifting of burden. In this case, even though the 1st respondent is admitting the business transactions with the complainant, he vehemently denied the existence of a legally enforceable debt by a specific plea that the cheque which was issued by him towards security and the same was used by the petitioner for submitting this complaint. In such circumstances, in the absence of any specific understanding arrived at between the parties enabling the appellant to collect interest at the rate of 24%, it cannot be concluded that the amount mentioned in Ext. P1 cheque reflects the actual amount of legally enforceable debt. In such circumstances, it cannot be safely concluded that the offence under Section 138 of the Negotiable Instruments Act has been made out. There are no merits in the appeal - appeal dismissed.
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