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2022 (12) TMI 91 - HC - Indian LawsDishonor of cheque - rebuttal of presumption - signatures in the cheque not disputed - acquittal of respondent on the ground that the appellant failed to prove that cheques were issued towards legally enforceable debt - Section 138 of the N.I. Act - HELD THAT:- It is now a well settled proposition of law that the Appellate Court should not replace its finding with that of the trial Court only when another view is possible. Interference is permitted only when findings of the trial Court are perverse or against a settled proposition of law. Keeping in mind the above settled proposition for the purpose of deciding present appeal. Re-appreciation of evidence so as to consider whether findings of the trial Court are in fact perverse and if so whether interference is warranted, needs to be looked into. In the entire evidence brought on record, the accused did not dispute issuance of such cheques including her signature on it. However, only defence raised with regard to such cheques is that same were obtained by force and coercion as well as threats. Thus, when the signatures on the cheques are not disputed as that of the accused, the provisions of Section 139 of N.I. Act stands attracted immediately. Magistrate is duty bound to draw a presumption under Section 139 of N.I. Act in favour of the complainant and there is no other option available otherwise. The entire material placed by the parties before the trial Court in connection with Exh.24 i.e. promissory note dated 18th April, 2012 nowhere remotely suggests that the accused succeeded in proving contrary thereby dislodging presumption under Section 118 of the N.I. Act. The entire case of the complainant is based on a cheque dated 15th June 2012 for ₹3,00,000/- issued by the accused towards discharge of the amount mentioned in the promissory note at Exh-24. Therefore, apart from the presumption under Section 118 of the N.I. Act, the complainant is also having the support of presumption under Section 139 of the N.I. Act - only because the complaint is lodged with the police station on 2nd July 2012 i.e. on the date when such cheques were already dishonoured, no interference could have been drawn by the learned Court in favour of the accused so as to dislodge presumption under Section 139 of the N.I. Act. Only lodging such a complaint of taking such cheque by force or threat is not sufficient enough to rebut presumption under Section 139 of N.I. Act specifically when the accused admits her signature on the cheque. Once it is considered that the accused failed to rebut presumption under Section 139 of the N.I. Act qua the cheque dated 15th June 2012 for ₹3,00,000/- vide Exh-21, the accused ought to have been considered as guilty for the offence punishable under Section 138 of N.I. Act. Thus such findings are clearly unacceptable and therefore so far as the first cheque of ₹3,00,000/- is concerned dated 15th June 2012, the accused is found guilty for the offence under Section 138 of the N.I. Act. The impugned judgment needs to be quashed and set aside qua cheque dated 15th April 2012 for ₹3,00,000/- at Exh-21 (colly) - application disposed off.
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