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2018 (7) TMI 629 - HC - Indian LawsSubject matter of cheque issue in dispute - Dishonor of Cheque - insufficiency of funds - it was claimed that the cheque was given as a security to the complainant as a security for the chit transaction - cheque issued for discharge of debt or not? - Section 138 of the Negotiable Instruments Act. Held that:- There was no way the accused and her husband while bringing the promissory note would have known that one Jagadish will be the witness in the promissory note and therefore the version of the complainant that the promissory note was brought typed by the accused and her husband is not believable. This only substantiates the case of the defense that the promissory note was a blank promissory note that was available with the complainant towards the earlier chit transaction and this promissory note has been typed and used for the purpose of this case. If really the version of the complainant is true, the best evidence that was available for the complainant was to examine Jagadish who is none other than a person who is working in his own office - It must also be noted that it is during this period of time, the chit transaction was going on between the complainant and the husband of the accused. Out of these two cheques, one cheque bearing No.88032 is the subject matter of the present case. The version of the defense that the subject matter cheque was given as a security to the complainant as a security for the chit transaction has been established by preponderance of probabilities. After the burden of proof was rebutted by the accused, the complainant must have at least examined Jagadish who according to him was the person who was present at the time when the loan was given by the complainant to the accused and her husband. However for reasons best to known to the complainant this was not done. The Appellate Court after discussing the entire evidence that was available on record has rightly come to the conclusion that the complainant failed to prove the fact that the subject matter cheque was issued towards a discharge of debt said to have been taken by the accused and her husband. Appeal dismissed.
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