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TMI Blog2020 (2) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... r the complaint, appellant is the proprietor of Prabha Sales wherein sale and purchase of railway equipment/machinery is done. Respondent/accused is the proprietor of M/s. Tirupati Construction and he obtained tender/contract from Railway division, Bilaspur. Earlier both parties entered into agreement regarding work of the contract of the railway obtained by the respondent. Appellant provided money to the respondent, therefore, cordial relationship was built up between the parties. When respondent obtained new contract from South Eastern Central Railway, Bilaspur, then he demanded loan from appellant and appellant gave him loan to the tune of Rs. 13,69,410/-. The respondent returned the amount of Rs. 3,69,410/- to the appellant by cash and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rohit Bhai Jivanlal Patel vs. State of Gujrat and other, reported in 2019 SCC Online SC 389. Iii) When respondent has returned some portion of amount, it is established that the amount in question is borrowed by the respondent for another contract work, therefore, finding of the trial court is liable to be set aside. 4. On the other hand, learned counsel for the respondent submits as under: I) Appellant has deposed before trial court that the amount in question is shown in income tax return and in record of Prabha Sales, but income tax return or the account of Prabha Sales is not produced and further audit account is not produced, therefore, the trial court is right in holding that the appellant failed to discharge that cheque was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the bank, Branch Bilaspur which was dishonoured due to insufficient fund in the account of the appellant. The bank gave information to the appellant regarding dishonouring of the cheque on 12-5-2016 thereafter, he issued a notice dated 30-5-2016 to the respondent for payment of Rs. 10,000,00/- which was received by him on 31-5-2016. Inspite of receiving notice, he did not return the amount that is why complaint was filed against him on 16-6-2016. Version of this witness is supported by cheque Ex.P/1, Memo of dishonouring of cheque Ex.P/2, notice issued to respondent Ex.P/3 and acknowledgement of receiving notice Ex.P/4. From the evidence of the appellant supported by document, it is established that cheque was issued in favour of appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not signed the cheque. A meaningful reading of the provisions of the Act, 1881 makes it ample clear that the person signed the cheque over to payee remains liable and he may adduce any evidence to rebut presumption. Presumption will live, exist and survive and shall end only when contrary is proved by the accused/respondent. 10. In the present case, the trial court recorded finding that though the appellant deposed that the amount is shown in income tax return and account of Prabha Sales but the said income tax and account of Prabhas Sales was not produced, therefore, version of the appellant is not corroborated. In view of this court, the finding arrived at by the trial court is clearly against the legal aspect of the matter. When res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her documents was not required under the law and cheque issued by the respondent is the best document for showing liability of the respondent. 11. On an overall assessment, it can be said that the finding of the trial court is against weight of the evidence and same is perverse. Further, finding arrived at by the trial court is not legal and contrary to the provisions of the Act, 1881. In view of this court, argument advanced on behalf of the respondent is not acceptable and the case laws cited by the respondent are clearly distinguishable from the facts of the present case. The act of the respondent falls within mischief of Section 138 of the Act, 1881. 12. Accordingly, the instant appeal is allowed. Finding of the trial court is set as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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