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2022 (1) TMI 99 - KERALA HIGH COURTDishonor of Cheque - existence of the legally enforceable debt or not - rebuttal of presumption under Section 139 as well as Section 118 of the Negotiable Instruments Act - HELD THAT:- Once it is proved that a negotiable instrument has been executed and handed over to the payee thereof the presumption as contemplated under the aforesaid provision comes into play. Unless the said presumption is rebutted by the accused by adducing some evidence, the court has to proceed on the basis of existence of a legal liability towards the complainant. In this case, the defence put forward by the 1st respondent is that the cheque which was collected by the appellant as part of the chitty transaction at an earlier point of time and it was later misused by the appellant by entering figures therein - the exact figure may not find a place in those statements as the amount mentioned in Ext.P2 cheque is the aggregate of the total arrears. In the light of presumption under Section 139 of the Negotiable Instruments Act, the appellant is entitled to succeed. In this case, the 1st respondent could not make out any case by adducing any evidence or otherwise to rebut the presumption available in favour of the appellant. In the light of the presumption under Section 139 which stands unrebutted and also the supporting materials in the form of Exts.P8 and P9 series, it is found that the cheque was issued in discharge of a legal liability towards the appellant herein - legal requirements for attracting the offence under Section 138 of the Negotiable Instruments Act regarding the issuance of notice and timeline to be followed before initiating the proceedings are seen duly complied with. The offence under Section 138 of the Negotiable Instruments Act is clearly established and the finding entered into by the Judicial First Class Magistrate Court-IV, Punalur contrary to the same is liable to be set aside - Appeal allowed - decided in favor of appellant.
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