*Negotiable Instruments Act, 1881 (26 of 1881)* Section 138 – Stand of complainant, i.e. that the cheque had been issued towards discharge of loans given by him to the petitioner at various points of time, along with interest thereupon – No evidence other than the complainants' own testimony having been led to prove any advancement of a loan to the accused, it was effectively held that the presumption raised under Section 139 of the Act of 1881, stood successfully rebutted. (2018-3) PUNJAB LAW REPORTER

 

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Negotiable Instruments Act, 1881, Section 139  - Accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose - Trial court as well as the Appellate Court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank of the presumption under Section 139 was rightly raised which was not rebutted by the accused - The accused had not led any evidence to rebut the aforesaid presumption - The accused even did not come in the witness box to support his case - In the reply to the notice which was given by the appellant the accused took the defence that the cheque was stolen by the appellant - The said defence was rejected by the trial court after considering the evidence on record with regard to which no contrary view has also been expressed by the High Court - The defence taken in the reply to the notice that cheque was stolen having been rejected by the two courts below, we do not see any basis for the High court coming to the conclusion that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability - How the presumption under Section 139 can be rebutted on the evidence of Plaintiff witness/complainant, himself has not been explained by the High court - High Court committed error in setting aside the order of conviction in exercise of revisional jurisdiction.

 

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Criminal Procedure Code, S. 482  -  Revisional jurisdiction  - High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely  on  the  ground  that  another  view  is  possible - High Court has not returned any finding that order of conviction based on evidence on record suffers from any perversity or based on no material or there is other valid ground for exercise of revisional jurisdiction -  There is no valid basis for the High Court to hold that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability - The appellant has proved the issuance of cheque which contained signatures of the accused and on presentation of the cheque, the cheque was returned with endorsement “insufficient funds” - Bank official was produced who proved that the cheque was not returned on the ground that it did not contain signatures of the accused rather it was returned due to insufficient funds - Accused even did not come in the witness box to support his case - How the presumption under Section 139 can be rebutted on the evidence of Plaintiff witness/complainant, himself has not been explained by the High court - The defence taken in the reply to the notice that cheque was stolen having been rejected by the two courts below, we do not see any basis for the High court coming to the conclusion that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability - Judgment of High Court is liable to be set aside on this ground alone. 

 

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Negotiable Instruments Act, Section 138 - When compensation is ordered as payable for an offence committed under Section 138 of the Negotiable Instruments Act, and in default thereof, a jail sentence is prescribed and undergone, is compensation still recoverable ? (Yes) – Cheque of Rs. 2.75 lacs dishonoured  - Trial court held accused guilty and ordered simple imprisonment for 4 months for the offence u/s 138 of the Negotiable Instruments Act and further directed to pay a compensation of Rs.2,75,000/- to the complainant u/s 357(3) of Cr.P.C. and in default of payment of compensation, to undergo simple imprisonment for 1 month - Appellate Court, confirmed the conviction, but reduced the sentence to imprisonment till rising of the Court - Order to pay compensation with the default clause was, however, sustained - Accused underwent imprisonment till the rising of the Court and also underwent the default sentence for non-payment of compensation – Application filed under Section 421 of the Criminal Procedure Code for realising compensation by issuing a distress warrant against the accused - Distress warrant for realisation of compensation issued - High Court, held that despite the fact that the default sentence was undergone, yet, under the provisions of the Code of Criminal Procedure, compensation was recoverable, and upheld the orders of the learned Judicial Magistrate – Order Upheld -  Criminal Procedure Code, 1908 Section 357(3), 421.(2017-1) SCeJ 120

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Negotiable Instruments Act, 1881, Section 138, 142 -  Suppression of crucial facts has to be viewed very seriously - That suppression of material facts relating to the alleged transaction in the notice issued before filing the suit or the complaint is an artifice used by certain litigants, the intention of which is very clear and they want to develop a story after knowing the defence that may be set up by the opposite party and the doors of the court should be closed to such fortune seekers -  Accused entitled to acquittal.

Held,

following K.K. Divakaran v. State of Kerala 2016 (4) KLT 233 : 2016 (4) KHC 901, that in a criminal case the accused should be informed before the trial not only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution and an accused in a complaint case filed under Sec.142 of the N.I.Act also is entitled to know before the trial the particulars of the accusation against him and that suppression of these particulars in the complaint alone is sufficient to order his acquittal. (2017) PLRIJ 43 (Ker.)

 

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Negotiable Instruments Act, 1881  , Section 138, 142 -  Cheque – Set hold  - Issuance of cheque admitted - Accused could establish a strong case that she had a bonafide dispute regarding the passing of the cheque in favour of the complainant - These bonafide disputes raised by the accused had led to the issuance of the dishonour memo on account of the stop payment instructions - This should be seriously reckoned from point of view of the crucial fact that the complainant has suppressed even the details given in reply notice, in her complaint, Section 200 sworn affidavit as well as in her chief examination - The very act of the complainant is suppressing these crucial aspects, would lead to a serious inference that even the complainant was under the impression that the accused was having a truthful defence - Therefore, when the accused has raised a bonafide and substantial dispute regarding the very entitlement of the complainant to receive the cheque amount, to get cheque passed, the accused has been clearly able to prove her contra-case. (2017) PLRIJ 43 (Ker.)

 

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Negotiable Instruments Act, 1881, Section 138, 139 -  Complainant has suppressed even the details given in reply notice, in her complaint, Section 200 sworn affidavit as well as in her chief examination - The very act of the complainant is suppressing these crucial aspects, would lead to a serious inference that even the complainant was under the impression that the accused was having a truthful defence - Therefore, when the accused has raised a bonafide and substantial dispute regarding the very entitlement of the complainant to receive the cheque amount, to get cheque passed, the accused has been clearly able to prove her contra-case. (2017) PLRIJ 43 (Ker.)

 

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