9911796707
TMI Blog2021 (10) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... ents to be proved for convicting the accused under section 138 of N.I. Act. Further, in absence of the legal notice brought on record by way of exhibit, it certainly cannot be assumed that the document which was sent through registered post was the legal notice pursuant to bouncing of the cheques - Mere bouncing of cheque signed by the accused does not constitute an offence unless other ingredients of the offence under section 138 of N.I. Act are also proved. In the aforesaid facts and such circumstances of this case, the basic ingredient to constitute an offence under Section 138 of N.I. Act have not been proved by the prosecution. There is no doubt that there is presumption in connection with a cheque in favour of the holder of the cheque under Section 139 of N.I. Act, but that presumption by itself is not sufficient to constitute an offence under Section 138 of N.I. Act, unless the other ingredients have been proved - this court is of the considered view that the conviction of the petitioner for offence under section 138 of N.I. Act is perverse and suffers from material irregularity which calls for interference in revisional jurisdiction to meet the ends of justice. Revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque is not enough to constitute an offence under section 138 N.I. Act. Learned counsel submits that in view of the aforesaid facts, the conviction of the petitioner for the offence under Section 138 of N.I. Act cannot be sustained in the eyes of law. Arguments of the opposite parties 8. The learned counsel appearing on behalf of the opposite party No. 2 has opposed the prayer and has referred to a Judgment passed by the Hon'ble Supreme Court in (2018) 8 SCC 165 (Kishan Rao Vs. Shankargouda) to submit that there is presumption in favour of holder of cheque in terms of Section 139 of N.I. Act and in the instant case, issuance of cheque and the fact that it had bounced due to insufficient funds is not dispute. It is submitted that the petitioner, though was entitled to raise a probable defence to create doubt with regard to existence of debt or liability, had not discharged his burden and accordingly the petitioner has been rightly convicted for the offence under Section 138 of N.I. Act. He has further submitted that there is no scope of re-appreciation of materials on record and coming to a different finding in revision jurisdiction and the discrepancies, which has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21.12.2005 and the petitioner pleaded not guilty and claimed himself to be innocent. 12. The complaint had examined altogether five witnesses and proved two cheques, which was marked Ext. 1 and 1/1 and proved the postal receipt, which was marked as Ext-2. 13. On the other hand, the defence though did not examine any oral witness, but proved the letter dated 16.10.1996 of BSFC and the original receipt of BSFC dated 7.02.1997 and original receipt of BSFC dated 27.05.1997, which was marked as Ext. A, Ext. B and Ext. B/1 respectively. Ext. B and B/1 were the receipt of ₹ 35,000/- and ₹ 25,000/- respectively issued by BSFC. 14. Although five witnesses were examined including complainant, who was examined as P.W. 3, but his evidence also was lacking in the material particulars in connection with the date of knowledge relating to bouncing of cheques, the date of issuance of legal notice, the date on which the legal notice was served/deemed to have been served upon the petitioner, even the postal receipt, which has been exhibited as exhibit-2, no date has been mentioned with regard to the postal receipt and no date has been mentioned regarding the legal notice which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the procedural requirement under the N.I. Act. The legal requirement is that the cheque must be presented within six months from the date on which it is drawn or within the period of its validity and the drawee/payee/holder in due course must make a demand for the payment of the cheque amount by giving a written notice to the drawer of the cheque within 15 days (now within 30 days) of the receipt of the information of dishonour of cheque. The complaint must be made within one month of the date on which the cause of action arises, in absence of sufficient cause for not making the complaint within such period. In this case two cheques have been issued which give rise to the presumption that the cheques were issued in discharge of any debt or other liability, if the contrary is not proved. In this case the convict-appellant has totally failed to rebut the said presumption of law against him. The defence of the appellant that the repayment was made does not hold good as the alleged repayment was not in connection with the dishonour cheques. All the ingredients of sec. 138 of N.I. Act are satisfied in view of the materials available on record. The learned lower court has rightly found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied mere issuance of a cheque and dishonour thereof would not constitute an offence by itself under Section 138. 31. Section 138 of the NI Act has been analysed by this Court in Kusum Ingots Alloys Ltd. wherein this Court said that the following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act. (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability, (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier, (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank (iv) the paye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by giving a written notice to the drawer of the cheque within 15 days (now within 30 days) of the receipt of the information of dishonour of cheque. The complaint must be made within one month of the date on which the cause of action arises, in absence of sufficient cause for not making the complaint within such period. In this case two cheques have been issued which give rise to the presumption that the cheques were issued in discharge of any debt or other liability, if the contrary is not proved. 23. This court finds that the learned court below has neither mentioned the essential dates regarding the issuance of legal notice as well as receipt of legal notice nor the same could have been recorded in absence of any averment in the complaint petition and also in absence of any evidence to this effect. The learned court below has even failed to consider that the legal notice was not even brought on record from the side of the prosecution and the case of the petitioner was of total denial. 24. This Court is of the considered view while applying the ratio of aforesaid judgment of Hon'ble Supreme Court that all the conditions which have been set out in para 31 of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
