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2019 (5) TMI 966 - HC - Indian LawsDishonor of Cheque - Section 138 of the Negotiable Instruments Act - recovery of Loan - rebuttal of presumptions - HELD THAT:- When once the first respondent establish the payment of money towards hand loan and issuance of cheque towards the said debt, the presumption under Section 139 of the Act is automatic. Now, it is for the petitioner to prove that no amount has been advanced and the subject cheque has not been issued by him. Therefore, the burden is on the petitioner to prove the same to probabalise the non-existence of consideration by preponderance of probabilities. Though the presumption under Section 118 and 139 of the Act is rebuttal, by way of preponderance of probabilities either through direct evidence or through the material brought on record, the petitioner failed to produce any evidence to rebut the said presumption. Mere denial of existence of debt is not sufficient to rebut the presumption. Further, the petitioner miserably failed to explain the circumstances under which Ex.P-2 was issued to the first respondent. That apart, there is no evidence as to how the promissory note (Ex.P-1) and the subject cheque (Ex.P2) went into the custody of the first respondent. When once the advancement of the amount and the issuance of Exs:P-1 and P-2, are not proved, this Court is of the opinion that the petitioner miserably failed to rebut the presumption as drawn under Sections 118 and 139 of the Act. There are no merits in the revision case - revision dismissed.
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