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TMI Blog2022 (11) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 138 of Negotiable Instruments Act. The crux of the complaint is that on 02.10.2012, the petitioner borrowed a sum of Rs.1,00,000/- for his urgent family expenses. In order to repay the same, the petitioner issued a cheque. The said cheque was presented for collection and the same was returned dishonored with an endorsement "Insufficient Funds". Immediately, after causing legal notice, the respondent lodged a complaint. 3. On the side of the respondent, he was examined as P.W.1 and marked Exs.P.1 to P.6. On the side of the petitioner, no one was examined and no document was marked. On a perusal of oral and documentary evidences, the Trial Court found the petitioner guilty for the offence punishable under Section 138 of Negotiab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, while pending the complaint, the petitioner paid a sum of Rs.35,000/- and he was in due of Rs.65,000/-. 6. The Hon'ble Supreme Court of India held in 2022 LiveLaw (SC) 830 in the case of Dashrathbhal Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr, is extracted hereunder, "30. In view of the discussion above, we summarise our findings below: (i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation; (ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the cheque or in a note appended to the cheque. When such an endorsement is made, the instrument could still be used to negotiate the balance amount. If the endorsed cheque when presented for encashment of the balance amount is dishonoured, then the drawee can take recourse to the provisions of Section 138. Thus, when a part- payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part payment. If the unendorsed cheque is dishonoured on presentation, the offence under Section 138 would not be attracted since the cheque does not represent a legally enforceable debt a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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