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2021 (7) TMI 1202 - HC - Indian LawsDishonor of Cheque - Fraudulent transaction or not - existing debt or advance payment - presumption available under Section 139 of the N.I.Act - no reply to the notice has been given - whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability? - Section 138 of the Negotiable Instruments Act, 1881. HELD THAT:- While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court. In M/S. BALAJI SEAFOODS EXPORTS VERSUS MAC INDUSTRIES LTD. [1998 (10) TMI 528 - MADRAS HIGH COURT], the Madras High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is, thus, no similarity in the facts of that case simply because in that case also, loan was advanced. It was noticed specifically therein – as was the admitted case of the parties – that the cheque was issued as “security” for the advance and was not intended to be in discharge of the liability, as in the present case. The Court notices that there is no disputes with regard to the signature on the cheuqe and her defence is that the brother-in-law had obtained her signature under the pretext that for emergency purpose this would be required for the use of the cheque in the business. There is an initial admission of the cheque, the presumption under Section 139 of the N.I.Act would come into play. It is also not out of place to make a mention that there is no reply to the notice issued by the complainant. With the elements referred to under the N.I.Act existing on record, it is for the trial Court thereafter to appreciate at an appropriate stage as to whether the defence put forth by the accused are worth accepting and would lead to the stage where this rebuttal can be said to have succeeded. The present complainant is a friend of the brother in law, who has misused such cheque - Private complaint appears to have been filed before the Court of learned Judicial Magistrate First Class, Indore, which has been dismissed. The allegation with regard to the disconnection of the electricity connection permanently from 10.01.2006, the closure of the factory at Sector 21-B and the account being dormant so also, the non-filling of Form No.49 or stamping of the invoice needed under the VAT are some of the issues which are inter connected and require the appreciation at the end of the adducement of the evidence. The petition is dismissed without further elaboration so as to ensure that rights of the either side may not be prejudiced. Interim relief stands vacated.
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