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TMI Blog2024 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... dence. It was incumbent upon the petitioner to discharge the initial burden of proving the issuance of the cheques in question. Besides this, the petitioner, for reasons best known to himself, chose not to examine any other independent witnesses barring himself, especially none of the concerned Bank officials. The cheques in question are themselves shrouded in mystery as there is no clarity qua the facets of as to firstly, who had filled them, secondly, when were they issued and lastly, where were they issued. In essence thereof, as the petitioner was unable to discharge the statutory burden cast upon him, there was no occasion for the presumption under Section 139 of the NI Act arising in his favour. The petitioner was unable to prove anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 378(1) of the Code of Criminal Procedure, 1973 [CrPC], seeks leave to appeal for setting aside of the judgment dated 29.10.2021 passed by the learned MM (NI Act)-02, Central, Tis Hazari Courts, Delhi in CC No.510612/2016 titled as C.P. Singh vs Vinod Prasad, whereby the respondent was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 [NI Act]. 2. As per the complaint filed by the petitioner, the petitioner and the respondent were on friendly terms for the past 10-12 years. Sometime in the first week of January, 2016, the respondent had approached the petitioner for a friendly loan of Rs.15,00,000/- [Rupees Fifteen Lakhs Only] for his personal business needs and the same was extended by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplied with all the procedural formalities as regards the offence under Section 138 of the NI Act; and that the respondent has not denied that the cheques in question belong to him and as such, the learned Trial Court has erred in opining that the petitioner was to prove that the signature(s) on the cheques in question were indeed the signature(s) of the respondent since the presentation of the cheques in question by the petitioner and their subsequent dishonour was nowhere denied by the respondent; and that since, based on settled principles of law, there is a presumption in favour of the petitioner, therefore, the onus lay upon the respondent to prove the contrary and lastly since the petitioner had complied with all the requirements mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed. 6. This Court has heard the learned counsel for the parties and has also perused the documents on record. 7. Before adverting to the merits of the matter, it is important to note, that to constitute an offence under Section 138 of the NI Act, the following essential ingredients are required to be fulfilled : a. The drawer has drawn a cheque for discharge of an existing debt or liability . b. The said cheque has to be presented within 3 months or within its validity period, whichever is earlier. c. The cheque has to be dishonoured/ returned unpaid due to insufficient funds or due to it exceeding the amount arranged. d. Apropos the above, the drawee has to make a demand qua the payment of the cheque amount by way of a written legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the petitioner to discharge the initial burden of proving the issuance of the cheques in question. Besides this, the petitioner, for reasons best known to himself, chose not to examine any other independent witnesses barring himself, especially none of the concerned Bank officials. The cheques in question are themselves shrouded in mystery as there is no clarity qua the facets of as to firstly, who had filled them, secondly, when were they issued and lastly, where were they issued. In essence thereof, as the petitioner was unable to discharge the statutory burden cast upon him, there was no occasion for the presumption under Section 139 of the NI Act arising in his favour. 12. In fact, the petitioner was unable to prove anything as re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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