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2023 (6) TMI 840 - BOMBAY HIGH COURTDishonour of Cheque - Rebuttal of presumption - discharge of burden to prove - main crux of argument is that once issuance of cheques are admitted, the presumption will come into picture and rebuttal evidence given by the accused in present case is insufficient - service of notice on proper address and drawing of presumption under Section 27 of the General Clauses Act - HELD THAT:- It is true that all these presumptions are not conclusive presumptions but they are rebuttal presumptions. When we have considered the evidence given by the complainant in both the cases and common evidence given by the accused in both complaints, it is found that both the parties have taken upon themselves the burden to prove the fact pleaded by them. No doubt the complainant in this case can certainly rely upon the presumption under sections 118 and 139 of N.I. Act. The signature on both cheques is not disputed by the accused. What is disputed is the contents of cheques. When the accused has admitted his signature, he has given authority to the complainant to make cheques complete in all respect. It is true that if there is material alteration that is to say any alteration carried out without consent of the parties, it affects the validity of negotiable instrument as contemplated under section 87 of the N.I. Act - the signatures and amount in figures are of accused. So filling other details cannot be said to be material alteration. The burden on accused is not heavy as that of the complainant. The Court has to see whether probable case so as to create dent in case of the complainant has been made out or not. The law does not provides for contingency of adducing evidence by the complainant, after accused has adduced evidence. From the cross examination, the complainant has to forsee what type of case is pleaded by the accused. The complainant has failed to anticipate that contingency. So the beneficiary is none other than accused. Service of Notice - HELD THAT:- The issue of service of notice is only of academic importance. It is true that the complainant could not state that the signature on acknowledgment belongs to accused. If the accused is available at the time of delivery and if she has signed, the complainant/sender of notice will be in position to identify the signature and not otherwise. But the address on the envelope is not disputed by the accused. So the presumption under section 27 of the General Clauses Act will certainly help the complainant. Both the sides have relied upon certain judgments on the point of manner of discharge of burden to prove service of notice - the complainant has not satisfied the material ingredients for the offence under section 138 of the N.I. Act. Appeal dismissed.
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