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2022 (11) TMI 493 - GAUHATI HIGH COURTDishonor of Cheque - insufficient funds - legally enforceable debt or not - rebuttal of statutory presumption u/s 139 of NI Act - non production of best evidence - HELD THAT:- In the case in hand, it is found that there is no dispute that there was business transaction between the petitioner and the respondent and also there is no dispute that the petitioner has admitted in his evidence having filled up the dates and amount of sum in the cheques and also there is no quarrel at the Bar that the cheques were presented to the banker by the respondent and the same were returned unpaid with the endorsement- “insufficient fund”. There is also no dispute that the respondent has issued legal notice to the petitioner demanding the cheques amount and the petitioner had failed to make the payment within the stipulated period, and thereafter, the petitioner had filed the complaint under section 138 of the N.I. Act. Thus, the presumption under sections 139 and 118(a) of the N.I. Act is very much available here in this case. It is a fact that the respondent had produced Tax Invoice and Challan of selling computers, laptops and accessories to the petitioner. Though Mr. Tiwari, the learned counsel for the petitioner has submitted that the respondent has withdrawn the relevant evidence and because of non-consideration of the same by the learned courts below in their judgments leads to perversity, yet, the same would not disentitled the learned courts below from drawing the statutory presumption available under section 139 of the N.I. Act. What is to be noted here is that the petitioner also failed to make any such prayer before the learned court below for production of the said documents. It also cannot be said that there is any material alteration of the cheques and no adverse inference can be drawn against the respondent and sections 20 and 87 of the N.I. Act would not come into aid of the petitioner. Mr. Deka, the learned counsel for the respondent has rightly pointed out this in his argument and submits that since signed cheques in questions were respondent in discharge of liability, non-existence of which could not be established by leading cogent evidence, it can reasonably be presumed that the cheque was filled in by the respondent being the payee at his request and/or with his acquiescence and the subsequent filling in of an unfilled signed cheque is not an alteration. This court is of the view that the petitioner herein has failed to rebut the statutory presumption drawn under section 139 of the N.I. Act. There is nothing on the record to show that the learned courts below have committed any jurisdictional error - Petition dismissed.
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