TMI Blog2020 (3) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. In the present case the trial Court recorded finding that advancing loan for a sum of ₹ 2 lakh in cash is contrary to the provisions of Section 269 SS 271D of the Income Tax Act, 1981 and the appellant had lent a sum of ₹ 2 lakh without having licence under Money Lenders Act, 1934, therefore, presumption under Section 139 of the Act, 1881 is rebutted - When the respondent has not denied that he has not borrowed money from the appellant on oath, the statement made by the appellant on oath supported by documents is not rebutted. Presumption under Section 139 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsion of the appellant/complainant, he had personal relation with the respondent and the respondent borrowed a sum of ₹ 2 lakh for construction of his house on 03.5.2016 and it was promised that the amount shall be returned within eight months, but the amount was not returned within the said period and thereafter the respondent has drawn a cheque in favour of the appellant on 02.4.2017 of Central Bank of India, Branch Akaltara and the same was deposited by the appellant in Punjab National Bank, Branch Naila for clearance but the same was returned on account of insufficiency of fund. The said information was given by the bank on 03.6.2017 thereafter notice was issued to the respondent on 10.6.2017 for payment and the respondent refused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be interfered with. 5. I have heard learned counsel for the parties and perused the judgment impugned. 6. The first question for consideration before this Court is whether cheque for ₹ 2 lakh was drawn by the respondent in favour of the appellant for discharge of debt, whether the cheque deposited in the bank for clearance was returned unpaid on account of insufficiency of fund in the account of the respondent and whether after legal notice the respondent has not returned the amount of cheque to the appellant. 7. The appellant side adduced evidence of Kailash Agrawal (PW-1) and produced documents Ex-P/1 to P/8. The respondent side did not adduce oral or documentary evidence. As per the version of Kailash Agrawal (PW-1), the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on such date; 9. Presumption is rebuttable, but from the evidence of the appellant side it is not rebutted and no evidence is adduced by the respondent to rebut the same. The respondent refused to take the notice issued to him and did not reply the notice, therefore, it can be said that the respondent has not made any offer to rebut the presumption. It is not a case where the respondent 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 a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are not required and cheque issued by the respondent is the best document showing liability of the respondent. 12. On an overall assessment, it can be said that the finding of the trial Court is against the weight of the evidence and the same is not legal and contrary to the provisions of the Act, 1881, therefore, argument advanced on behalf of the respondent is not sustainable. The act of the respondent falls within mischief of Section 138 of the Act, 1881. 13. Accordingly, the appeal is allowed. Finding of the trial Court is hereby set aside. The respondent is convicted under Section 138 of the Act, 1881. The date of issuance of cheque is 02.4.2017. The appellant is entitled to interest 6% to the amount advanced by him. According ..... X X X X Extracts X X X X X X X X Extracts X X X X
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