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16. Respondent No.1 in her affidavit in lieu of examination-in- chief testified that she never approached the complainant for any friendly loan nor issued any cheques as alleged. She had never informed the appellant that her husband was suffering from blood 10 of 28 1-APPEAL-764-2009-final.doc cancer and her daughter wanted to undergo training for the post of an Air Hostess. Interestingly, in her evidence, respondent No.1 testified that cheques bearing No.445881 and 445883 of UTI Bank were lost by her about which she had informed the Bank. She testified that she had never issued the cheques in favour of the appellant and even signatures over the cheques were not made by her. When she was cross-examined on behalf of the appellant, she admitted of not filing any Police complaint as regards lost cheques, however, she maintains that she did inform her Bank about lost cheques. Evidence of respondent No.1 is to be accepted with a pinch of salt for a simple reason that bank employee examined by her in support of alleged lost cheques viz. D.W.2 - Moulik Shah testified that from the application form which was brought by the witness in the Court, it revealed that the signature over the application form vis-a-vis the cheque/s is not matching but, the cheques were not returned for that reason as it has been proved by the appellant and this witness that the cheques were returned for "Insufficient funds" and not on account of difference in the signatures. Admittedly, the concerned cheque book was issued in favour of respondent No.1. It is not the case of respondent No.1 that since the cheques were lost, she had informed the Bank to stop 11 of 28 1-APPEAL-764-2009-final.doc payment of the cheques. This witness (D.W. 2 - Moulik Shah) also testified that he is not aware whether any application to that effect was given by respondent No.1 or informed the Bank about lost cheques. He testified that since he is not a handwriting expert, he cannot make a positive statement as to whether signatures over the cheques in question were made by respondent No.1. As such, even this witness has not supported respondent No.1-accused. It is surprising as to how Counsel for respondent No.1 argued before this Court that the cheques were stolen by the appellant which was not the defence taken during trial.

17. There is one more interesting fact surfaced during the cross- examination of the appellant wherein the appellant admits that before the cheques were dishonoured, respondent No.1 had filed a Non Cognizable Offence bearing No.725 of 2007 on 18 th May, 2007 under section 504 of the I.P.C with the Police Station whereupon the concerned Police Inspector had summoned both of them. This is irrelevant in the given set of facts as it seems that due to an acrimony which arose after the transaction in question, respondent No.1 had lodged NC complaint against the appellant. Had the cheques in question were either stolen or lost, 12 of 28 1-APPEAL-764-2009-final.doc respondent No.1 would have lodged a report, which she did not.

18. From the aforesaid discussion, it is apparent that the appellant had proved beyond doubt as regards advance of Rs.3,00,000/- to respondent No.1 as a hand loan against which respondent No.1 issued two subject cheques which came to be dishonoured for want of sufficient funds in her account.

19. The cross-examination of the appellant as well as evidence of respondent No.1 substantiated all the material facts as stated by the appellant in her complaint. Respondent No.1 had failed to substantiate her defence and failed to rebut the statutory presumptions under sections 118 and 139 of the N.I. Act. The explanation appended to Section 138 explains the meaning of the expression 'debt or other liability' for the purpose of Section 138. This expressions necessarily means a legally enforceable debt or other liability. This section treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. Indeed, cheques came to be issued by respondent No.1 in discharge of the debt. The explanation leaves no manner of 13 of 28 1-APPEAL-764-2009-final.doc doubt that to attract an offence under section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. It has been substantiated that on the date of drawal of the cheques, there was a legally enforceable debt in subsistence. Respondent No.1 had failed to rebut the aforesaid presumption in light of the aforesaid discussion of evidence and facts. Neither her own evidence nor evidence of the employee of the AXIS Bank is helpful in rebutting the presumption; rather, it had substantiated and buttressed the case of the appellant rendering the evidence of respondent No.1 otiose. Had there been some element of truth in the alleged loss of cheques, respondent No.1 would have definitely informed the Bank or lodged a report with the Police. It is also surprising to note as to how only four cheques alleged to have been stolen from the cheque book? It is equally surprising as to where the other two cheques are, if four cheques were lost. The silence of the respondent No.1 on this crucial aspect renders her testimony doubtful. It is also surprising to note as to why respondent No.1 did not make any attempt to prove the fact that the signatures over the cheques were forged. This is nothing short of subterfuge.