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2022 (9) TMI 107 - HC - Indian LawsDishonor of Cheque - existence of legally enforceable debt or not - rebuttal of the presumption - production of cogent evidence to show as to when the disputed cheque was issued to payoff legally enforceable debt or any other liability - cross-examination of witnesses - cheque kept as security was misused by the complainant to harass the respondent company in the year 2004, after 15 years - section 138 of NI Act - HELD THAT:- The contention of the accused respondent is that the cheque was kept as security with the complainant’s company and the business of the accused was closed down in the year 1990 as also the bank account was closed in the year 1990 and it is a fact that the appellant could not prove a single document to show that there was a business transaction between the accused and the complainant between the period 1990 to 2004, i.e. the year when the alleged disputed cheque dated 21st July, 2004 was issued - Exhibit 6/3 is a cheque bearing no. 087106 dated 6.11.1989; Exhibit 6/4 is a cheque bearing no. 067107 dated 17.11.1989; Exhibit 6/5 is a cheque bearing no. 087108 dated 27.11.1989 and Exhibit 6/6 is a cheque bearing no. 087109 dated 28.11.1989. All these four cheques were issued by the accused in favour of the complainant in the year 1989. Surprisingly the disputed cheque bearing no. 087110 in the next cheque in the cheque book was allegedly issued on 21.07.2004. It is thus found that after the cheque being Exhibit 6/6 was issued, the next cheque in the same Cheque Book being disputed cheque marked as Exhibit 1 was issued after fifteen years. This is totally unbelievable and as such the said fact totally supports the case of the accused respondent and also supports all the contention of the accused respondent that the cheque was handed over to the complainant as a security and was not issued to meet off any legally enforceable debt or any other liability towards the complainant. The presumption against the accused in respect of the said cheque could not be proved in view of the evidence as discussed. Considering the materials on record this Court finds that it has been clearly proved before the Court that the accused respondent’s bank account was closed in the year 1990 and his business was also closed in the same year. There has been no business transaction between the parties to this case from 1990 to 2004. Exhibit 6/6, is the cheque just prior to the disputed cheque marked as Exhibit 1, the gapping period between the said two cheques is fifteen years. This goes against the case of the complainant and totally supports the defence of the accused respondent - It has been clearly proved that there was absolutely no business transaction between them from the year 1990 and 2004 and the disputed cheque marked as Exhibit 1 had been kept as security and was misused by the complainant to harass the respondent company in the year 2004, after 15 years. This Court finds no reason to interfere with the judgement and order under appeal - Appeal dismissed.
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