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2022 (2) TMI 1 - HC - Indian LawsDishonor of Cheque - discharge of legally enforceable debt or not - misuse of cheque or not - case of the revision petitioner/accused is that the 2nd respondent/complainant had taken one signed blank cheque, two unsigned blank cheques and promissory note from him with a promise to arrange a loan for him and thereafter, the 2nd respondent/complainant had misused the cheques - section 138 of NI Act - HELD THAT:- In the instant case, a perusal of the material available on record would show that the 2nd respondent/P.W.1 admitted in his cross-examination that he was an Income Tax Assessee, but he did not mention the loan transaction in his income tax returns. In the absence of any corroborative evidence and in view of the admission made by the 2nd respondent/PW1 that he is an Income Tax assessee, the question would be whether non-showing of the amount in his income tax return is sufficient to rebut a presumption that the cheque was not issued in discharge of a debt or liability. In the instant case, as per the evidence of the 2nd respondent/complainant, Ex.P2- pronote was executed by the revision petitioner/accused, on 26.08.1999, for ₹ 1,10,000/-, whereas the cheque under Ex.P1 was issued for ₹ 1,81,400/- on 05.07.2002. However, the 2nd respondent/complainant has not properly explained under what circumstances, the cheque was issued for ₹ 1,81,400/-. That apart, the 2nd respondent/complainant (P.W.1) has admitted in his cross-examination that he has withdrawn ₹ 30,000/- by depositing the cheque of the revision petitioner/accused on 01.12.2000, which clearly proves the contention of the revision petitioner/accused that the 2nd respondent/complainant had misused the cheques issued by him for obtaining a bank loan. The finding recorded by the learned trial Judge that the 2nd respondent/complainant had established that the cheque was issued towards discharge of legally enforceable debt, which was confirmed by the appellate Court, is suffered from illegality and caused miscarriage of justice. Hence, the conviction and sentence imposed against the revision petitioner/ accused for the offence punishable under Section 138 of the N.I. Act is liable to be set aside - Criminal revision case allowed.
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