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2022 (9) TMI 379 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - accused admitted his signatures on the cheques or not - raising of presumption available under section 139 of the Negotiable Instruments Act - HELD THAT:- The evidence on record discloses that the respondent does not dispute to have issued cheques to the appellant, and he also admits his signature on the cheques. In the complaint as also in the examination-in-chief, the appellant stated that the respondent obtained hand loan of Rs. 2,25,000/- in the month of December 2006 assuring to repay the same within two months. For discharging this loan the respondent issued two cheques as per Exs.P1 and P2 - Appellant has also admitted that he asked the respondent for giving security for regularizing his appointment, but he denied the suggestion that the respondent gave two cheques at that time by way of security. Same was the evidence given by respondent when he adduced evidence as DW1. In the light of the evidence available on record, if the findings of the courts below are examined, it may be stated that the trial court is justified in coming to conclusion that the respondent issued the cheques Exs.P1 and P2 for repaying the hand loan that he had obtained from the appellant. When the evidence of PW1 to this effect has not at all been questioned in the cross- examination, it remains unassailed. The appellant got issued legal notice before initiating action for the offence under section 138 of the Negotiable Instruments Act. Respondent admits to have received the notice, but did not reply - It is highly impossible to believe that the respondent being part of the management would give cheques by way of security to a teacher whose appointment was to be confirmed by the education department. This defence is against the practical phenomenon that usually the management demands money from the teachers for confirmation of their appointment in the private schools. In the case on hand, it is not the defence of the respondent that the appellant had no capacity to lend Rs. 2,25,000/- to him. When such a defence was not taken by the respondent, it was impermissible for the appellate court to give a finding to that effect for upsetting the judgment of the Magistrate. Indeed it is incumbent on the part of the complainant to prove that the dishonoured cheque was issued by the accused for discharging in full or part of legally enforceable debt. If according to the accused, the complainant had no capacity to lend money, he must introduce a specific defence to that effect. Unless such a defence is introduced, the court is not expected to give a finding regarding financial capacity. The judgment of the appellate court is set aside and the judgment of conviction passed by the Magistrate is restored - Appeal allowed.
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