9911796707
TMI Blog2022 (11) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... n 138 of Negotiable Instruments Act for returning the cheque dishonoured. The first petitioner is the Proprietrix of Arpan Exports. The second petitioner is the Mandate Holder of the said Arpan Exports and he is authorized to run the Proprietrix concern including to operate the account of the first petitioner herein. Therefore, the respondent rightly filed a complaint for the offence punishable under Section 138 of Negotiable Instruments Act as against the Proprietrix and the mandate holder, who signed the cheque. It is not the case of the petitioners that without the consent of the first petitioner, the second petitioner issued cheques. In order to repay the loan which was borrowed by both the accused, they issued cheques in favour of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gotiable Instruments Act. The crux of the complaint is that on 08.10.2002, the petitioners borrowed a sum of Rs.15,00,000/- to develop the export business. As requested by the petitioners, the respondent had lend a loan by way of two cheques dated 08.10.2002 of a sum of Rs.10,00,000/- and Rs.50,000/- drawn on ABN-AMRO Bank. It was duly en-cashed by the petitioners, who promised to repay the said loan with interest at the rate of 15%. They also executed two promissory notes in favour of the respondent herein. However, the petitioners failed to return the amount and as such the respondent caused notice on 15.09.2003. After repeated request by the respondent, the petitioners issued three cheques for a sum of Rs.5,00,000/- each. All the cheques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 138 of Negotiable Instruments Act. The cheques were returned dishonoured for the reason that the account was attached by the Provident Fund Commissioner. To attract the offence under Section 138 of Negotiable Instruments Act, the cheques should have been returned for insufficient funds or improper arrangement. Therefore, the endorsement of the account which is attached would not attract the offence under Section 138 of Negotiable Instruments Act. 5. A perusal of records revealed that the first petitioner is a Proprietrix of Arpan Exports. The second petitioner is the Mandate Holder of the said Arpan Exports. The second petitioner is authorised to operate the account owned by the first accused. The petitioners issued cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, 9 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purposes of this section, debt of other liability means a legally enforceable debt or other liability 7. Admittedly, Exs.P2 to P4 were issued for legally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Sections 118 and 139 of Negotiable Instruments Act. Though, the said presumption is rebuttable in nature, it is the burden of the petitioners to rebut the said presumption. However, in order to rebut the said presumption, the petitioners neither produced any oral nor marked any documentary evidence. In fact, nothing was elicited from P.W.1 to rebut the presumption. 9. Therefore, both the Courts below rightly found the petitioners guilty for the offence punishable under Section 138 of Negotiable Instruments Act and this Court finds no infirmity or illegality in the orders passed by the Courts below and this revision is liable to be dismissed. 10. Accordingly, this Criminal Revision case stands dismissed. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
