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Important Decisions (Cr) : Negotiable Instruments Act,1881 : July 2018

S.138 - Dishonour of cheque - Legal debt or liability - Cheques issued as security for procuring job - Though an illegal act on behalf of accused but it has some bearing with regard to the fact that cheques were not issued in discharge of any legal debt or liability - Complainant could not rebut the reasonable defence taken up by accused - Acquittal calls for no interference. (P&H) 267

S.138, Criminal Procedure Code, 1973, S.256 - Dishonour of cheque - Dismissal of complaint in default - Case was fixed for defence evidence - Complainant was duly represented by counsel, but his counsel has also failed to put in appearance for which complainant may not be held liable directly - Rather, absence of complainant, as he has engaged a counsel to represent him, may be considered under bona fide belief that counsel may attend his complaint in his absence - Moreover, for recording statements in defence, presence of complainant was not necessary - Magistrate was not justified in dismissing complaint in default for single instance of complainant coupled with failure of his counsel to attend the date, instead of adjourning the case for future date, particularly when there is no finding of Magistrate that complainant was not pursuing complaint honestly and diligently - Impugned order set aside - Complaint restored. (H.P.) 135

S.138, Evidence Act, 1872, S.114 - Dishonour of cheque - Notice - Presumption of service of notice - Copy of notice and postal receipt placed on record - Nothing on record that address of accused is wrong or that notice was sent back undelivered - Accused could have summoned record from Post Office to show that notice in fact had not been delivered to him but not done so - Presumption u/s 114 of Evidence Act of receipt of notice is to be drawn in favour of complainant. (P&H) 221

Ss.138, 139 - Dishonour of cheque - Presumption - Plea that cheque was issued as security - Onus is on accused to establish that cheque issued was as security but the same was not done - Presumption is in favour of complainant that it was on account of discharge of financial liability - Though such presumption is rebuttable, but accused failed to rebut the same - No evidence that cheque is a forged or fabricated document -Complainant also proved details of sources from where she managed to raise amount of Rs.50 lakhs advanced by her to accused - Cheque issued is in discharge of legal liability - Accused rightly convicted. (P&H) 221

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