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2022 (4) TMI 1244 - HC - Indian LawsDishonor of Cheque - Payment was stopped by the drawer - discharge of legally recoverable debt or not - rebuttal of presumption - financial capacity to lend - sources of income - Legality of money lending business without any license - validity of signature on the cheque - burden of prove - section 138 of NI Act - HELD THAT:- On perusing the averments made in the complaint coupled with the documentary evidence produced before the Court, it is evident that petitioner has discharged burden of proving his case. The accused has admitted that cheque belong to his account and also admitted his signature on it. In view of the evidence led before the Court, the presumption under Section 139 of Act and Section 118 of NI act arise in favour of complainant. In this case, the accused has lead evidence as DW1. In his examination in chief, it is stated that a false case has been filed against him. The contentions of the petitioner in this regard are all false as some of his cheques were missing and he has intimated the Bank to stop the payment and the signature on the demand note is not of his signature. This is in examination in chief. He never stated that, he does not know this complainant or his brother. He does not say that complainant has no financial capacity, he does not say that how the cheque was mis-used. Validity of signatures on the cheque - HELD THAT:- The accused has not produced any documents before the Court to show that he has informed the Bank that he lost the cheques or cheque book, he has not examined the Manager also but simply state that he has informed the bank to stop the payment will not help the accused-petitioner. Even he has not stated that on which date he has given intimation to bank. According to him, neither he mentioned the date nor that he has given any intimation to bank to stop payment he has not lodged any complaint to the court or to the Police in this regard, even he has not mentioned which number cheques are lost. So this defence appears to be only for defence sake and there is no merit in it. On the other hand, it is evident that both petitioner and respondent were business persons - There is nothing in defence evidence to show that the complainant case is not true. The defence evidence will not help the accused in any way. The complainant has discharged the burden on him the presumption arising under said Negotiable Instrument Act is in his favour. If the entire materials are considered the judgment passed by the trial Court which was confirmed by appellate Court cannot be said as either illegal or erroneous. Both the courts have considered the provisions of laws and also the presumption under Section 139 of the NI Act properly. The accused has failed to rebut such presumption. Petition dismissed.
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