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TMI Blog2020 (9) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... the contents of the bank notes were not proved in accordance with Section 67 of the Evidence Act and thus bad in law, has no force in the eye of law and contrary to Section 146 of the N.I. Act. The accused- respondent has not preferred any appeal in regard to the findings of the learned Trial Court while deciding the point No.1 as quoted herein-above that the cheque was issued by the accused-respondent in favour of the complainant-appellant in discharge of his liability and debt to pay the sum of ₹ 7,95,000/- - the instant appeal merits consideration, the complainant-appellant has been able to prove the fact of the accused s liability to pay the entire amount of ₹ 7,95,000/- as fine. The same should be paid to the complainant within a period of three months from the date of receipt of this order, otherwise, in default, the accused-respondent shall be sent to jail to suffer simple imprisonment for six month. Appeal disposed off. - CRL.APP NO.23 OF 2018 - - - Dated:- 26-8-2020 - HON BLE MR. JUSTICE ARINDAM LODH For the Appellant(s) : Mr. S. Lodh, Adv. For the Respondent(s) : Mr. S. Ghosh, Addl. P.P. Mr. A. De, Adv. JUDGMENT ORDER(ORAL) Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved by and dissatisfied with the said finding and dismissal of the complaint filed by the complainant-appellant, the instant appeal has been preferred. 7. Mr. S. Lodh, learned counsel appearing on behalf of the appellant-complainant submits that the finding of the learned Trial Court is contrary to the law laid down under Section 146 of the N.I. Act. Mr. Lodh, learned counsel has drawn my attention to the findings of the learned Chief Judicial Magistrate while deciding the point No.1, wherein, it was observed by the Court below that:- [14] Thus it is proved that accused person issued the cheque vide Exhibit-1 in favour of complainant with a view to discharge his liability i.e. debt of ₹ 7,95,000/- towards payment of the price of the rods. The suggestion of accused that he was not supplied with the rods is not supported by any evidence and so it cannot be believed that accused made no transaction with complainant or that he did not purchase the rods cited in Exhibit-3. Merely because stock register of complainant were not produced, the plea of complainant and evidence of PW1 cannot be disbelieved. This in view of the above discussion and reasons I am of the considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those findings. 14. I find force in the submission of Mr. Lodh, learned counsel appearing for the appellant that Section 67 of the Evidence Act has no relevance in deciding a complaint lodged under Section 138 of the N.I. Act in view of engrafted provision as laid down under Section 146 of the N.I. Act. 15. This question was taken into consideration by the Apex Court in Mandvi Cooperative Bank Ltd. Vs. Nimesh B. Thakore reported in (2010) 3 SCC 83 , wherein, the Apex Court held that the provisions of the N.I. Act override the provision contained in the Evidence Act in the manner quoted hereunder:- 16. Complaints under section 138 of the Act came to be filed in such large numbers that it became impossible for the courts to handle them within a reasonable time and it also had a highly adverse effect on the court's normal work in ordinary criminal matters. A remedial measure was urgently required and the legislature took action by introducing further amendments in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002. The 2002 amendment inserted in the Act for the first time sections 143 to 147 besides bringing about a number of chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments Act,1881, namely:-- (i) to increase the punishment as prescribed under the Act from one year to two years; (ii) to increase the period for issue of notice by the payee to the drawer from 15 days to 30 days; (iii) to provide discretion to the court to waive the period of one month, which has been prescribed for taking cognizance of the case under the Act; (iv) to prescribe procedure for dispensing with preliminary evidence of the complainant; (v) to prescribe procedure for servicing of summons to the accused or witness by the court through speed post or empanelled private couriers; (vi) to provide for summary trial of the cases under the Act with a view to speeding up disposal of cases; (vii) to make the offences under the Act compoundable; (viii) to exempt those directors from prosecution under section 141 of the Act who are nominated as directors of a company by virtue of their holding any office or employment in the Central Government or State Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. 144. Mode of service of summons. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), and for the purposes of this Chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works; for gain, by speed post or by such courier services as are approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the cheque, unless and until that fact was disproved. Section 147 makes the offences punishable under the Act, compoundable. 16. Thus, it is no more res integra that the provisions of Section 146 of the N.I. Act unambiguously and expressly override the principles of the Indian Evidence Act and making such a major departure from the application of the Evidence Act provides that the bank slip or memo with the official mark showing that the cheque was dishonoured would by itself give rise to the presumption of the dishonour of the cheque, unless and until the contrary to the said fact was disproved. In view of insertion of Section 146 in the N.I. Act, Section 67 of the Evidence Act as relied upon by the learned Trial Judge has no manner of application to prove or disprove the document relating to bank note/slip/return memo. Furthermore, Section 143 of the N.I. Act fortifies the complaint under Section 138 of the N.I. Act to be tried in summary manner. Having held so, the findings that the contents of the bank notes were not proved in accordance with Section 67 of the Evidence Act and thus bad in law, has no force in the eye of law and contrary to Section 146 of the N.I. Act. ..... 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