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2021 (5) TMI 843 - HC - Indian LawsDishonor of Cheque - pre-existing liability - Rebuttal of presumption - acquittal of the accused - offence punishable under Section 138 of the Negotiable Instruments Act - merely for the reason that the first respondent has admitted his signature on the Ext.P1 cheque, whether that would automatically invite the invocation of presumptions under Sections 118 and 139 of N.I.Act? - HELD THAT:- Once the execution of the cheque is admitted or proved, necessarily it is the legal consequence that the complainant is entitled to draw the presumption under the above said sections. Then only the accused/first respondent is expected to discharge the burden and rebut the presumptions that are drawn against him. Here certainly, the first respondent has denied the execution of the cheque. In other words, he has denied any money transaction with the appellant. Now the remaining question is whether the cheque is proved to have been executed by the first respondent. The prosecution should be able to establish their case on their own. The lapses on the part of the defence cannot be made advantage by the prosecution. Similarly, there is no substance in the contention that the appellant did not state the details of the transaction etc. By numerous authorities, it has been stated that such details are not necessary to be stated in the complaint. If it is proved that the cheque was executed and issued by the first respondent/accused in discharge of a legally enforceable liability, then the appellant is entitled to draw the presumptions. But here, the appellant has inherent weaknesses in his case. All the same, even if there are lapses in the defence version that cannot be taken use of by the appellant. Here the appellant has not established that the cheque was issued in a transaction as alleged by him and therefore, the presumptions under Sections 118 and 139 of the N.I. Act cannot be drawn in favour of the appellant. The facts of the case vis-a-vis the facts of the authorities relied on by the learned counsel for the appellant are clearly distinguishable. Here the very case of the first respondent is that he had not borrowed any amount from the appellant nor the Ext.P1 was given to the appellant - the appellant could not establish that there was long standing acquaintance between them which prompted him to lend so much money to the first respondent. In the circumstances and in the absence of fool proof evidence, he cannot be entitled to draw the presumptions. Appeal dismissed.
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