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2020 (2) TMI 1023 - HC - Indian LawsDishonor of Cheque - acquittal of accused - rebuttal of presumption - burden to prove - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- In the present case, the trial court recorded finding that though the appellant deposed that the amount is shown in income tax return and account of Prabha Sales but the said income tax and account of Prabhas Sales was not produced, therefore, version of the appellant is not corroborated. In view of this court, the finding arrived at by the trial court is clearly against the legal aspect of the matter. When respondent has not denied by adducing evidence of himself that he has not borrowed money from the appellant, presumption under Section 139 of the Act, 1881 will survive and remain exist and corroboration to the statement of the appellant is not required. From the evidence of the appellant, it is clearly established that respondent had earlier taken amount of ₹ 3,14,000/- from him which was returned by him. Appellant is running business of of railway machinery and advancing sum to respondent in earlier occasions which shows that he is capable to advance money to the respondent, therefore, it is not a case where source of income of the appellant is not established. The amount was advanced on the basis of personal relation, therefore, preparation of other documents was not required under the law and cheque issued by the respondent is the best document for showing liability of the respondent. On an overall assessment, it can be said that the finding of the trial court is against weight of the evidence and same is perverse - Further, finding arrived at by the trial court is not legal and contrary to the provisions of the Act, 1881. Respondent is convicted under Section 138 of the Negotiable Instruments Act, 1881. The date of issuance of cheque is 10-7-2015. Appellant is entitled to interest @ 6% per annum on the amount advanced by him - appeal allowed.
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