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2020 (12) TMI 1007 - HC - Indian LawsDishonor of Cheque - Funds Insufficient - specific defence was taken that the cheque was given to the brother of the complainant and the same was misused - HELD THAT:- No suggestion was made to P.W.1 that those two letters Exs.D.1 and 3 are served on him. But he categorically admits that Ex.D.1 was not sent through registered post and also admits that the cover was also not returned. But he claims that Ex.D.1 was sent to the office address of the complainant. He also admits that he has not given any reply through his counsel. It is also important to note that he categorically admits that he has not given any stop payment. The complainant disputes the documents Exs.D.1 to 3. When the accused admits the signature on Ex.P.1, he has to rebut the evidence of the complainant. It is also elicited from the mouth of D.W.1 that he has not given any letter to the bank and also not given any notice to Ashok, when he did not return the other cheque. Though he claims that he gave the complaint, he categorically admits that no endorsement was given by the police. It is also important to note that earlier also he had availed loan from Ashok, but while availing the loan earlier, he has not given any cheque to Ashok for security. There is no dispute that the accused has to place the material of preponderance of probabilities. In the case on hand, I have already pointed out that though an attempt is made by the accused to place the preponderance of probabilities, those documents are not worthwhile to accept the defence and the evidence of D.W.2 is also not worthwhile. The Appellate Court while reversing the findings of the Trial Court has assigned the reasons that the handwriting available in Ex.P.1 are in different ink. P.W.1 in the cross-examination admits the same. But the fact that he has signed the cheque and handed over the same, has not been explained. D.Ws.1 and 2 in their cross- examination categorically admits that they went to the office of the complainant - If no transaction was taken place between them, what made them to go to the house or the office of the complainant, is not explained. On perusal of 313 statement of the accused also, nothing is stated with regard to availing of loan from the brother of the complainant and handing over the cheques to Ashok. The defence in the cross-examination got elicited that loan was given on 05.10.2006 and though in the complaint and legal notice, the complainant has not stated the date of loan transaction, the answers elicited from the mouth of P.W.1 is clear that loan was given on 05.10.2006. P.W.1 categorically says that in the early morning, the accused and his brother came to his office and took the money. The accused did not dispute the signature found on Ex.P.1 and notice issued against him. Though he claims that he gave reply in terms of Exs.D.1 and 3, the same cannot be accepted - The judgment of the Hon'ble Apex Court in the case of RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT], is clear that if the accused has not given any reply to the notice and not disputed the signature found in Ex.P.1, the Court must draw the presumption under Section 139 of the N.I. Act. Hence, the very contention of the accused counsel cannot be accepted. Appeal allowed - decided in favor of appellant.
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