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Negotiable Instruments Act, 1881, S.138 - Notice - Received back unclaimed - In case of unclaimed notice the deemed service of notice is to be reckoned from the date of postal endorsement and not from the date the undelivered notice is received back by the sender. (Ashwani Kumar Julka Vs Lt.Col.Parthojit Choudhary (Retd.)) 2007(4) Criminal Court Cases 513 (Delhi)
Negotiable Instruments Act, 1881, S.138 - Partnership firm - Son of deceased partner - Cannot be impleaded as an accused merely for the reason that he happens to be the son of deceased partner. (Sardar Jasvir Singh & Anr. Vs State of Uttar Pradesh & Anr.) 2007(3) Civil Court Cases 534 (Allahabad) : 2007(3) Criminal Court Cases 865 (Allahabad) Negotiable Instruments Act, 1881, S.138 - Pre mature complaint - Complaint not to be dismissed - Complaint can be kept pending for taking cognizance when cause of action arises to the complainant or it may be returned to complainant for filing it later. (L.K.Prabhavathi Vs K.V.Sree Rama Murthy & Anr.) 2007(3) Criminal Court Cases 767 (A.P.) : 2007(4) Civil Court Cases 523 (A.P.) Negotiable Instruments Act, 1881, S.138 (As amended) - Dishonour of cheque - Notice - After amendment of Act notice can be sent within one month of receipt of information of dishonour of cheque. (Nagendra Prasad Singh & Anr. Vs State of Bihar & Anr.) 2007(1) Civil Court Cases 698 (Patna) : 2007(1) Criminal Court Cases 999 (Patna) Negotiable Instruments Act, 1881, S.138 Proviso (a) - 'Within a period of six months' - Date of cheque is not to be excluded in calculating the period of six months. (Nanu Vs Vijayan) 2007(2) Civil Court Cases 193 (Kerala) : 2007(2) Criminal Court Cases 350 (Kerala) Negotiable Instruments Act, 1881, S.138 r/w Indian Penal Code, 1860, S.420 - Accused borrowed money and issued two cheques - Two options were available to complainant to either get the cheques encashed or in the alternative to get plot of 100 square yards - Subsequent to the bouncing of cheques complainant did not avail of second option - Held, as there was contingent alternative available to complainant to get worth of his money in terms of real estate which was not availed, no offence u/s 420 IPC is made out. (Geeta Vs State of U.P. & Anr.) 2007(3) Civil Court Cases 810 (Allahabad) : 2007(3) Criminal Court Cases 540 (Allahabad) Negotiable Instruments Act, 1881, S.138, Companies Act, S.446 - Dishonour of Cheque - Provision of S.446 of Companies Act has no application to the provisions of S.138 of Negotiable Instruments Act - S.138 of NI Act has overriding effect over section 446 of Companies Act - Order staying proceedings under section 138 because of S.446 of Companies Act, quashed. (Gyan Chand Vs State of Rajasthan & Anr.) 2007(1) Criminal Court Cases 256 (Rajasthan) : 2007(2) Civil Court Cases 176 (Rajasthan) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.195(1)(b)(ii) - Dishonour of cheque - Cheque alleged to be forged before filing complaint - Held, if offence is committed pertaining to document prior to its production in Court and when it was not in custody of Court then bar u/s 195(1)(b)(ii) of Cr.P.C. does not arise and complainant is at liberty to file complaint and take action as per law. (Ramanand Vs Kailasnath & Anr.) 2007(1) Civil Court Cases 658 (Bombay) : 2007(1) Criminal Court Cases 509 (Bombay) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.205 - Dishonour of cheque - Exemption from personal appearance - Cheque amount Rs.2 lakhs - Exemption granted from personal appearance on deposit of an amount of Rs.2 lakhs. (Kulbir Singh Uberoi & Anr. Vs M/s.Kumar Industries) 2007(3) Civil Court Cases 181 (P&H) : 2007(3) Criminal Court Cases 142 (P&H)
Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - Dishonour of cheque - Complaint - Dismissal in default - Complaint can be dismissed in default when personal attendance of complaint was essential on the crucial date - Order dismissing complaint in default set aside as complaint was dismissed without considering the said question. (Dilawar Singh Vs Pankaj Joshi & Anr.) 2007(2) Civil Court Cases 355 (P&H) : 2007(2) Criminal Court Cases 604 (P&H) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - Dishonour of cheque - Complaint - Dismissal in default for non prosecution - Transfer of case from one Court to another Court - Reason for non appearance adequately explained - Technicalities should not block the road for justice - No prejudice to shall be caused to respondent in case parties are heard on merits - Complaint restored to be decided on merits. (M/s.Plaza Cables Electric Pvt.Ltd. Vs Kamal Khurana) 2007(4) Criminal Court Cases 384 Delhi) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - Dishonour of cheque - Complaint - Summary trial - Provision of S.256 Cr.P.C. applies - Non appearance of complainant on date fixed for appearance of accused - Magistrate has no option but to acquit accused unless he chooses to adjourn the proceeding to some other date. (Vinay Kumar Vs State of U.P. & Anr.) 2007(4) Civil Court Cases 062 (Allahabad) : 2007(4) Criminal Court Cases 120 (Allahabad) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - Dishonour of cheque - Death of complainant during pendency of complaint - Son came forward to continue the proceedings - He is competent to conduct the proceedings initiated by the deceased father - Dismissal of petition on death of complainant set aside and son allowed to continue the proceedings. (Gene Vs Gabriel) 2007(4) Criminal Court Cases 742 (Madras) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - Dishonour of cheque - Dismissal of complaint in default - On date fixed complainant fell ill - Counsel also did not appear - Complaint dismissed in default - A party cannot be made to suffer for negligence of his counsel - Dismissal set aside. (Kulwant Singh Vs Balhar Singh) 2007(1) Civil Court Cases 601 (P&H) : 2007(1) Criminal Court Cases 459 (P&H) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256(1) - Dishonour of cheque - Dismissal of complaint in default - Magistrate before dismissing the complaint in default should record reasons as to why he does not deem it proper to adjourn the hearing - When no such reasons are forthcoming, complaint ordered to be restored. (Manjit Kaur Vs State of Punjab & Anr.) 2007(1) Civil Court Cases 260 (P&H) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.311 - Dishonour of cheque - Recall of complainant for cross examination when the case was at the stage of pronouncement of judgment - Not clear as to what type of questions are necessary to be put to the complainant - At the fag end of trial, reopening of trial cannot be permitted and complainant cannot be recalled for cross examination. (Rajkumar Vs Smt.Gunmala & Ors.) 2007(2) Civil Court Cases 798 (M.P.) : 2007(4) Criminal Court Cases 735 (M.P.) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.311 - Dishonour of cheque - Recall of witness - Bank witness produced but through oversight the dishonoured cheque and memo issued by Bank not exhibited - It is a case of oversight and not an attempt to fill in the lacuna - Production of cheque and memo is necessary for the just decision of a complaint - Application allowed. (Janeshwar Dutt Vs Sanjiv Kumar) 2007(2) Civil Court Cases 693 (P&H) : 2007(2) Criminal Court Cases 833 (P&H)
Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.357(1), (3) & (5) - Dishonour of cheque - Compensation - Unless amount is claimable in civil suit, direction u/s 357(1) or S.357(3) Cr.P.C. for payment of compensation cannot be issued. (Sathyan Ayyappa Sathyan Vs Yousu & Anr.) 2007(3) Civil Court Cases 639 (Kerala) : 2007(3) Criminal Court Cases 889 (Kerala) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.357(3) - Dishonour of cheque - Compensation - Interest - Court can ascertain the loss which the complainant would suffer/has suffered on account of the delay in payment and appropriate rate of interest can be directed to be paid, consistent with the rate of interest payable by the nationalised banks - In the instant case interest at the rate of 8% per annum allowed. (Sathyan Ayyappa Sathyan Vs Yousu & Anr.) 2007(3) Civil Court Cases 639 (Kerala) : 2007(3) Criminal Court Cases 889 (Kerala) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.357(3) - Dishonour of cheque - Compensation - Interest - Direction can be issued u/s 357(3) Cr.P.C. for payment of interest. (Sathyan Ayyappa Sathyan Vs Yousu & Anr.) 2007(3) Civil Court Cases 639 (Kerala) : 2007(3) Criminal Court Cases 889 (Kerala) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.357(4)- Dishonour of cheque - Compensation - Accused convicted and sentenced to three months simple imprisonment and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for 20 days - By imposing the sentence of imprisonment alone, complainant cannot recover the money from the accused - Accused directed to pay a compensation equal to that of cheque amount. (Selvaraj Vs N.Jeyaraman) 2007(1) Civil Court Cases 646 (Madras) : 2007(1) Criminal Court Cases 869 (Madras) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.378 - Dishonour of cheque - Acquittal - Appeal against - It is necessary for Appellate Court to find out as to what facts are established and whether on the basis of such facts, any presumption get attracted or rebutted in order to draw appropriate inferences. (Purushottam Vs Manohar K.Deshmukh & Anr.) 2007(1) Criminal Court Cases 682 (Bombay) : 2007(1) Civil Court Cases 423 (Bombay) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.401 - Dishonour of cheque - Revision - Every error is not justification for invoking revisional powers - Unless the alleged infraction of procedure resulted in miscarriage of justice, revisional jurisdiction cannot be invoked. (Bhaskaran Nair Vs Abdul Kareem) 2007(1) Civil Court Cases 104 (Kerala) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.438 - Transitory bail - Jurisdiction - Dishonour of cheque - Accused living at Chandigarh - Case pending before Court at Jaipur - Punjab and Haryana High Court granted transitory bail for 21 days - Punjab and Haryana High Court can grant anticipatory bail for transitory period. (Gurmit Kaur Vs U.T. Chandigarh) 2007(1) Civil Court Cases 067 (P&H) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - Dishonour of cheque - Company - Director - Cheque issued in 2003 whereas petitioner ceased to be Director of Company in 1994 - Certified copy of Form-32 issued by Registrar of Companies is a conclusive proof that petitioner resigned in 1994 - Petitioner was not Director at the material time - Proceedings against petitioner, quashed . (Dr.(Mrs.) Sarla Kumar Vs Srei International Finance Ltd.) 2007(2) Civil Court Cases 065 (Delhi) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - Dishonour of cheque - Company - Director - Cheque issued in 2003 whereas petitioner ceased to be Director of Company in 1994 - Certified copy of Form-32 issued by Registrar of Companies is a conclusive proof that petitioner resigned in 1994 - Petitioner was not Director at the material time - Proceedings against petitioner, quashed. (Dr.(Mrs.) Sarla Kumar Vs Srei International Finance Ltd.) 2007(1) Criminal Court Cases 071 (Delhi) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - Dishonour of cheque - Quashing of complaint - Accused took plea that cheque was in possession of complainant for collateral security - It is not a ground for quashing complaint - Such matter has to be looked into at stage of trial. (M/s Jai Durga Enterprises & Anr. Vs State of U.P. & Anr.) 2007(1) Criminal Court Cases 751 (Allahabad) : 2007(2) Civil Court Cases 098 (Allahabad) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - Dishonour of cheque - Quashing of proceedings - In proceedings u/s 482 of Cr.P.C. High Court is not to go into the truthfulness of the allegations - Once a complaint discloses the commission of an offence, the veracity of the allegations is not to be tested in proceedings u/s 482 of the Code as the same had to be tested in the backdrop of the evidence which is yet to come on record. (Kulbir Singh Uberoi & Anr. Vs M/s.Kumar Industries) 2007(3) Civil Court Cases 181 (P&H) : 2007(3) Criminal Court Cases 142 (P&H) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482, General Clauses Act, 1897, S.27 - Dishonour of cheque - Notice - Sent as per registered post and also as per UPC - Notice sent as per registered post returned by postman by endorsing false report - Notice sent under UPC received by addressee - Service of notice denied by filing affidavit - Same not controverted by filing counter affidavit - It is liable to be deemed that there was no sufficient service of notice - Proceedings quashed. (M/s Jai Durga Enterprises & Anr. Vs State of U.P. & Anr.) 2007(1) Criminal Court Cases 751 (Allahabad) : 2007(2) Civil Court Cases 098 (Allahabad) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.561-A - Dishonour of cheque - Process issued - Quashing of proceedings - Cheque not presented within its validity period i.e. six months - Liability u/s 138 of Act not incurred - Proceedings quashed. (Shrikant Chavan Vs Hotel the Vaishno Devi) 2007(2) Civil Court Cases 368 (J&K) : 2007(2) Criminal Court Cases 009 (J&K) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.91 - Dishonour of cheque - Production of account books - Amount of cheque recorded in account books - Accused in defence evidence can seek an order as to production of account books to rebut the presumption that cheque was issued for discharge of debt or other liability legally enforceable - Order as to production of account books - No interference. (Firm Baghala Bros. Vs Maniram) 2007(2) Criminal Court Cases 103 (Rajasthan) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.14 & 190 - Dishonour of cheque - Complaint - Jurisdiction - Every Judicial Magistrate in a district has jurisdiction to entertain a complaint - However, only jurisdictional Magistrate has power to try the same - If any Magistrate not empowered by law to do any other thing including to take cognizance of an offence, but may have erroneously in good faith done that thing, his proceedings shall not be set aside merely on the ground that he was not empowered. (Soman Achari Vs Sabu Jacob) 2007(1) Civil Court Cases 522 (Kerala) : 2007(1) Criminal Court Cases 460 (Kerala) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.190, 178, Constitution of India, Article 227 - Dishonour of cheque - Cause of action arose within State of Kerala but complaint filed in a Court outside the State of Kerala - Kerala High Court is not competent to quash the complaint or interfere with the proceedings before a criminal court, outside the jurisdiction of the Court. (Meenakshi Sathish (Mrs.) Vs Southern Petrochemical Industries & Ors.) 2007(2) Civil Court Cases 685 (Kerala) (FB) : 2007(2) Criminal Court Cases 798 (Kerala) (FB) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.190, 460, 14 - Dishonour of cheque - Complaint - Territorial jurisdiction - Complaint filed in the Court of CJM whereas it had to be filed in the Court of Magistrate in the same district - CJM erroneously took cognizance - Complaint returned to be presented in a Court having territorial jurisdiction - Complaint beyond limitation when filed in Court of Magistrate - Every Magistrate has jurisdiction to entertain a complaint throughout the district, but because of division of work that Court may not try a complaint and, therefore, it may order presentation of complaint at a place so earmarked - Held, once the Court of CJM had jurisdiction to entertain the complaint, the period provided for limitation would stop running from the day it was presented in the said Court - Complaint, held within limitation. (V.K.Soman Pillai Vs Sabu Jacob & Anr.) 2007(2) Civil Court Cases 599 (Kerala) : 2007(2) Criminal Court Cases 945 (Kerala)
Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.205 & 317 - Dishonour of cheque - Exemption from personal appearance - Dismissal of application - Reasons not assigned - Court while passing an order is required to assign reasons for the conclusions arrived at - Impugned order set aside - Court to decide application afresh. (Sri Brajabandhu Mohapatra Vs Sri Sasanka Sekhar Senapati) 2007(4) Criminal Court Cases 769 (Orissa) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.205 and 251 - Dishonour of cheque - Exemption from personnel appearance - Petitioner, a household lady, having two school going children - Petitioner has to also look after her old mother-in-law besides two school going children - Occurrence 5 years old - Exemption from personal appearance granted. (Anita Nanda Vs State of Punjab & Anr.) 2007(1) Civil Court Cases 151 (P&H) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.256, 378(4), 401(4) - Dishonour of cheque - Complaint - Non appearance of complainant on date fixed for appearance of accused - Accused acquitted - Complainant had right to file special leave to appeal to High Court u/s 378(4) - No appeal filed - Revision is not maintainable before Sessions Judge. (Vinay Kumar Vs State of U.P. & Anr.) 2007(4) Civil Court Cases 062 (Allahabad) : 2007(4) Criminal Court Cases 120 (Allahabad) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.256, 385, 386 - Dishonour of cheque - Conviction - Appeal - Admitted and notice ordered to be issued to the complainant - Non appearance of accused - Appeal cannot be dismissed for default - Appellate Court has to peruse the record and pass an order on merits. (V.R.Jayasankar Vs K.G.Dharman & Anr.) 2007(2) Civil Court Cases 252 (Kerala) : 2007(2) Criminal Court Cases 657 (Kerala)
Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.482 and 200 - Dishonour of cheque - Time barred complaint - Condonation of delay - First notice of application be issued to the other side without taking cognizance of complaint - Application be decided after hearing the parties. (Prashant Goel Vs State & Anr.) 2007(1) Criminal Court Cases 838 (Delhi) : 2007(2) Civil Court Cases 028 (Delhi) Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, S.357 - Dishonour of cheque of Rs.3 lacs - Accused convicted and sentenced till rising of Court - Accused liable to pay compensation of Rs.3.50 lacs and in default to undergo two months S.I. - Compensation amount if realised payable to complainant. (Ramakrishnan Vs Gangadharan Nair & Anr.) 2007(3) Civil Court Cases 713 (Kerala) : 2007(3) Criminal Court Cases 459 (Kerala) Negotiable Instruments Act, 1881, S.138, Evidence Act, 1872, S.114 - Dishonour of cheque - Notice - Notice returned with endorsement that addressee did not claim the notice and the persons in occupation did not receive the intimation and not as "No such addressee" - Presumption that addressee resides at that address is proper. (Bhaskaran Nair Vs Abdul Kareem) 2007(1) Civil Court Cases 104 (Kerala) Negotiable Instruments Act, 1881, S.138, Evidence Act, 1872, S.114, General Clauses Act, 1897, S.27 - Dishonour of cheque - Notice - Sent through private courier service - Presumption of service of notice is not available - Presumption of service of notice is available only when notice is sent by post, properly addressed, prepaying and sent by registered post - Held, in absence of date of service of notice of demand, summoning order quashed. (Deepak Kumar & Anr. Vs State of Uttar Pradesh & Anr.) 2007(2) Civil Court Cases 467 (Allahabad) : 2007(2) Criminal Court Cases 631 (Allahabad) Negotiable Instruments Act, 1881, S.138, Evidence Act, 1872, S.45 - Dishonour of cheque - Signatures - Handwriting expert - Accused did not dispute the handwriting on the cheque - Opinion of handwriting expert not necessary - Application filed by accused to that effect rightly dismissed. (Mangal Singh & Anr. Vs M/s.Khurana Chemicals) 2007(1) Civil Court Cases 715 (Rajasthan) : 2007(1) Criminal Court Cases 1031 (Rajasthan) Negotiable Instruments Act, 1881, S.138, Evidence Act, 1872, Ss.45, 73, Criminal Procedure Code, 1973, Ss.397, 401 - Cheque - Signatures disputed - Defence evidence - Summoning of witnesses i.e. Bank Manager and hand-writing expert - One opportunity granted to produce the defence evidence. (Om Prakash Joshi Vs Radhey Shyam Bilochi) 2007(1) Criminal Court Cases 944 (Rajasthan) Negotiable Instruments Act, 1881, S.138, General Clauses Act, 1897, S.27 - Dishonour of cheque - Notice - Sent as per registered post - Notice received by family member of drawer - No evidence led by drawer to prove that he did not receive notice through member of his family - Acquittal of accused on ground of want of service of notice is bad in law - Accused convicted. (Umraz Khan Vs A.Jameel Ahmed & Anr.) 2007(1) Civil Court Cases 433 (Karnataka) : 2007(1) Criminal Court Cases 768 (Karnataka)
Negotiable Instruments Act, 1881, S.138, Indian Penal Code, 1860, S.420 - Dishonour of cheque - Post dated cheque - Initiation of proceedings u/s 138 of the Act - Initiation of separate proceedings u/s 420 IPC for the offence of cheating is maintainable as it does not amount to double jeopardy. (V.Kannan Vs State by District Crime Branch, Namakkal ) 2007(4) Civil Court Cases 549 (Madras) : 2007(4) Criminal Court Cases 464 (Madras) Negotiable Instruments Act, 1881, S.138, Indian Penal Code, 1860, Ss.68 & 69 - Dishonour of cheque - Compensation - In default to undergo imprisonment - Such default sentence shall lapse at any time when payment is made either before or after default sentence starts running. (Girish Vs Muthoot Capital Service (P) Ltd.) 2007(1) Civil Court Cases 436 (Kerala) : 2007(1) Criminal Court Cases 856 (Kerala)
Negotiable Instruments Act, 1881, Ss.138 & 141 - Company - Dishonour of cheque - Notice given to company - Separate notice to Managing Director who signed the cheque on behalf of company is not required - Proceedings against Managing Director cannot be quashed. (Rajkumar Malhotra Vs Bhanwarlal) 2007(1) Civil Court Cases 466 (Rajasthan) : 2007(1) Criminal Court Cases 539 (Rajasthan) Negotiable Instruments Act, 1881, Ss.138 & 141 - Dishonour of cheque - Company - Director - Evidence is not required to be pleaded but there has to be a basic averment as to how one is involved in the alleged crime. (Kapal Mehra Vs Indusind Enterprises and Finance Ltd.) 2007(4) Civil Court Cases 681 (Bombay) : 2007(4) Criminal Court Cases 967 (Bombay)
Negotiable Instruments Act, 1881, Ss.138 & 141 - Dishonour of cheque - Company - Mere fact that proceedings have been quashed against the accused will not prevent the Court from exercising its discretion if it is fully satisfied that a case for taking cognizance against him has been made out in the additional evidence led before it. (Kapal Mehra Vs Indusind Enterprises and Finance Ltd.) 2007(4) Civil Court Cases 681 (Bombay) : 2007(4) Criminal Court Cases 967 (Bombay)
Negotiable Instruments Act, 1881, Ss.138 and 141 - Dishonour of Cheque - Company - Complaint against company and its Directors - Specific averment has to be made in complaint that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company - This averment is an essential requirement of S.141 of the Act - Without this averment in complaint, requirement of S.141 cannot be said to be satisfied. (Luxmi Devi Vs Puran Chand) 2007(1) Civil Court Cases 026 (P&H) : 2007(1) Criminal Court Cases 033 (P&H) Negotiable Instruments Act, 1881, Ss.138 and 141 - Dishonour of cheque - Company - Director - In order to bring a case within S.141 of the Act, complaint must disclose necessary facts which make a person liable. (Sunil Kumar Vs Nahata Fabrics) 2007(1) Criminal Court Cases 124 (Rajasthan) Negotiable Instruments Act, 1881, Ss.138 and 141 - Dishonour of cheque - Company - Part time Director - No averment in complaint as to how petitioner was in control of the day-to-day business of the company or was in charge of and responsible to the company for the conduct of its business at the time of commission of offence - Petitioner not a signatory of the cheque - Proceedings against petitioner quashed. (O.P.Mehra Vs Raj Kumari Bhalla & Anr.) 2007(1) Criminal Court Cases 847 (P&H) : 2007(2) Civil Court Cases 181 (P&H) Negotiable Instruments Act, 1881, Ss.138 and 141 - Dishonour of Cheque - Complaint against firm and its five partners - Averment in complaint that all the partners were incharge and responsible persons of the firm - No ground made out to quash the proceedings. (Luxmi Devi Vs Puran Chand) 2007(1) Civil Court Cases 026 (P&H) : 2007(1) Criminal Court Cases 033 (P&H) Negotiable Instruments Act, 1881, Ss.138 and 141 - Dishonour of cheque - Partnership firm - Sleeping partner - Not liable - Mere fact that a partner has financial stake in the business of the firm is not sufficient in itself to attract culpable liability under S.141(1) of the Act - To attract culpable liability a partner must be in charge of and responsible to the firm to the conduct of its business. (K.K.Mohandas Vs M/s Jayasamudri Trading Co. & Anr.) 2007(1) Civil Court Cases 803 (Kerala) : 2007(1) Criminal Court Cases 300 (Kerala) Negotiable Instruments Act, 1881, Ss.138 and 141, Criminal Procedure Code, 1972, S.482 - Dishonour of cheque - Company - Prosecution of Company, its Chairman, Managing Director and Director - Petitioner denied that he was ever Chairman of Company - No evidence except affidavit of complainant - Petitioner did not sign the cheque - Authentic and unimpeachable documents placed on record to show that petitioner was not Chairman of Company and inspite of opportunity granted complainant did not controvert the same - Prima facie evidence shows that petitioner is not involved in the alleged offence and he cannot be held vicariously liable for the alleged offence committed by the Company - Summoning of petitioner quashed. (Shekhar Suman Vs Narender & Ors.) 2007(1) Civil Court Cases 685 (P&H) : 2007(1) Criminal Court Cases 769 (P&H) Negotiable Instruments Act, 1881, Ss.138 and 141, Criminal Procedure Code, 1973, S.482 - - Dishonour of cheque - Company - Company and its Directors approached complainant for grant of loan - As per loan agreement Company issued three cheques, which were dishonoured - A2 M.D. of company and A3 to A6 its Directors - Plea to quash complaint on the ground that there was no proper averment and notice of offence was framed mechanically - If there are requisite averments in complaint under Ss.138 and 141 of N.I. Act then matter has to proceed for expeditious disposal and defence is to be raised before concerned Magistrate and is not to be considered in a petition under S.482 Cr.P.C. - No interference called for. (G.S.Saluja Vs IFCI Venture Capital Funds Ltd.) 2007(1) Civil Court Cases 620 (Delhi) Negotiable Instruments Act, 1881, Ss.138 and 141, Criminal Procedure Code, 1973, S.482 - Dishonour of cheque - Company - Director - Quashing of proceedings - Quashing sought on ground that disputed cheques were signed by non-petitioner No.3 on behalf of company and not by petitioner - Liability arises on account of conduct, act or omission on part of a person and not merely on account of holding an office or a position in a company - Absence of any specific material on record for fastening liability under S.141 of N.I. Act - Order taking cognizance qua petitioner could not be sustained only on ground that petitioner was director of company - Impugned order passed by trial Court, quashed. (Sunil Kumar Vs Nahata Fabrics) 2007(1) Criminal Court Cases 124 (Rajasthan) Negotiable Instruments Act, 1881, Ss.138 and 147, Criminal Procedure Code, 1973, Ss.219 and 220(1) - Dishonour of cheque - Accused issued 16 cheques of different dates in discharge of liability - All the cheques dishonoured - Single notice issued - One complaint in respect of 16 cheques is maintainable. (Manjula Vs M/s Colgate Palmolive (India) Limited) 2007(3) Criminal Court Cases 601 (Madras) (DB) Negotiable Instruments Act, 1881, Ss.138 and 147, Criminal Procedure Code, Ss.219 and 220(1) - - Dishonour of cheque - Part of same transaction - Accused issued 16 cheques in discharge of liability - All the cheques dishonoured - Offences committed by same person in respect of 16 cheques must be held to be part of same transaction - One complaint in respect of 16 cheques is maintainable. (Manjula Vs M/s Colgate Palmolive (India) Limited) 2007(3) Criminal Court Cases 601 (Madras) (DB) Negotiable Instruments Act, 1881, Ss.138, 139 - Blank cheque - It cannot be presumed that an implied authority is given to the holder of the cheque to fill it up towards discharge of a debt etc. - There must be allegation in complaint and evidence that blank cheque was issued with implied authority to holder to fill up the same. (Kamalammal Vs C.K.Mohanan & Anr.) 2007(3) Civil Court Cases 237 (Kerala) : 2007(3) Criminal Court Cases 168 (Kerala) Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Blank cheque - Even if the signature in the cheque is admitted there is no presumption available that it is executed by the accused. (Kamalammal Vs C.K.Mohanan & Anr.) 2007(3) Civil Court Cases 237 (Kerala) : 2007(3) Criminal Court Cases 168 (Kerala) Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Cheque issued against loan - Loan denied - No proof of lending money - Even month or year of loan not disclosed - Held, when complainant does not place on record any material of lending money then it is sufficient to infer that accused is able to rebut the presumption available in favour of the complainant - Accused not guilty of offence u/s 138 of the Act. (G.Veeresham Vs S.Shiva Shankar & Anr.) 2007(4) Civil Court Cases 532 (A.P.) : 2007(4) Criminal Court Cases 547 (A.P.) Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Cheque issued towards time barred debt - Once the cheque is issued, accused cannot contend that it is not in respect of legally enforceable debt - Time barred debt is also valid consideration. (S.Parameshwarappa & Anr. Vs S.Choodappa) 2007(2) Civil Court Cases 763 (Karnataka) : 2007(2) Criminal Court Cases 592 (Karnataka) Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Consideration - Cheque issued towards investment in one of the complainants' Fixed Deposit Schemes - Cheque is issued without consideration or that it was not issued towards the discharge of any debt or liability - Order by Revisional Court setting aside the order issuing process cannot be faulted with. (Travel Force Vs Mohan N.Bhave & Anr.) 2007(2) Criminal Court Cases 955 (Bombay) : 2007(3) Civil Court Cases 472 (Bombay) Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Denial of issuance of cheque - Held, once cheque is duly singed by accused, mere denial of issuing cheque is not sufficient to rebut the presumption available u/s 139 of the Act. (J.Ramaraj Vs IIiyaz Khan) 2007(2) Civil Court Cases 458 (Karnataka) : 2007(2) Criminal Court Cases 726 (Karnataka) Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Discharging of liability - Blank signed cheque given as security not taken back - No explanation as to why acknowledgment/voucher not taken when liability was discharged - Plea of discharge is so fragile and brittle that it must fall to the ground as improbable and unacceptable. (K.P.Rathikumar Vs N.K.Santhamma & Anr.) 2007(4) Civil Court Cases 546 (Kerala) : 2007(4) Criminal Court Cases 343 (Kerala) Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Legally enforceable debt - Cheque issued to retiring partner - Specific plea of accused that complainant is still a partner - Evidence as to retirement from partnership not adduced - When there is failure to prove factum of retirement from partnership the only reasonable conclusion could be that there was no existing liability as on date of issuance of cheque - No interference in order of acquittal. (K.A.Prakash Rao Vs U.Indira Devi & Ors.) 2007(1) Civil Court Cases 483 (A.P.) : 2007(1) Criminal Court Cases 518 (A.P.) Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Presumption - In a complaint u/s 138 of the Act, Court has to presume that the cheque had been issued for a debt or liability - The presumption is rebuttable - The burden of proving that the cheque had not been issued in discharge of a debt or liability is on the accused. (R.Sivaraman Vs State of Kerala & Ors.) 2007(3) Civil Court Cases 618 (Kerala) : 2007(3) Criminal Court Cases 419 (Kerala) Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Presumption - It is for drawer to rebut presumption - In absence of rebuttal evidence, it is to be presumed that cheque was issued for discharge of debt or other liability. (Jayamma Vs Lingamma) 2007(3) Civil Court Cases 466 (Karnataka) : 2007(3) Criminal Court Cases 287 (Karnataka) Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Time barred debt - Loan transaction taking place in 1994 and cheque for repayment of loan issued for the year 1999 - Loan amount became time barred in the year 1997 - Held, there is no legal bar for the debtor agreeing to pay the time barred debt - No fresh consideration is required for debtor's promise to pay the time barred debt - Cheque constitutes an agreement or promise by the debtor to pay the time barred debt - Drawer held guilty of offence. (H.Narasimha Rao Vs Venkataram R.) 2007(1) Civil Court Cases 670 (Karnataka) : 2007(1) Criminal Court Cases 975 (Karnataka)
Negotiable Instruments Act, 1881, Ss.138, 141 - Co-operative Society - Secretary signatory of cheque - Signatory of cheque if ceases to be Secretary on the date when offence was committed cannot be prosecuted u/s 138 of the Act - Crucial date for determining date when offence was committed is when cheque is returned by the bank unpaid - A person can be prosecuted for offence u/s 138 only if at the time the offence was committed he was in charge of and responsible to the company for the conduct of business of the company. (Kairali Marketing & Processing Co-op.Society Ltd. Vs Pullengadi Service Co-op. Society Ltd.) 2007(1) Civil Court Cases 624 (Kerala) : 2007(1) Criminal Court Cases 1060 (Kerala) Negotiable Instruments Act, 1881, Ss.138, 141 - Dishonour of cheque - Company - Agent - Petitioner neither a director, manager, secretary or other officer of the company - Petitioner not incharge or responsible for the conduct of the business of the company - Petitioner may have handled transactions for and on behalf of the company in India - This does not bring petitioner within the purview of S.141 of the Act - Summoning order qua petitioner quashed. (Birthe Foster Vs State & Anr.) 2007(3) Civil Court Cases 075 (Delhi) : 2007(3) Criminal Court Cases 026 (Delhi)
Negotiable Instruments Act, 1881, Ss.138, 141 - Dishonour of cheque - Company - Directors - Question as to whether a person was in charge of and was responsible to the company for the conduct of the business at the relevant paint of time is to be adjudicated during the course of trial, based on the materials placed before the Trial Court by the parties. (M.K.Bajoria, Director, Marshall Sons & Co. (Mfg.) Ltd. & Ors. Vs M/s.Lalith Steel Suppliers) 2007(3) Criminal Court Cases 179 (Madras) Negotiable Instruments Act, 1881, Ss.138, 141 - Dishonour of cheque - Company - Directors - There should be a specific averment in the complaint that the persons sought to be made liable was in charge of and responsible for the conduct of the business of the company at the relevant point of time, as the directors in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. (M.K.Bajoria, Director, Marshall Sons & Co. (Mfg.) Ltd. & Ors. Vs M/s.Lalith Steel Suppliers) 2007(3) Criminal Court Cases 179 (Madras) Negotiable Instruments Act, 1881, Ss.138, 141 - Dishonour of cheque - Company - Nominated Director - Director nominated by IDBI as financial assistance extended to company - IDBI a financial institution controlled by Central Govt. - Director nominated by a Central Government or State Government or a Financial Corporation owned or controlled by Central Government or State Government cannot be prosecuted for dishonour of cheque - Proceedings against petitioner quashed. (V.K.Saxena Vs State) 2007(1) Civil Court Cases 590 (Delhi) : 2007(1) Criminal Court Cases 822 (Delhi) Negotiable Instruments Act, 1881, Ss.138, 141 - Dishonour of cheque - Company - Notice - Prosecution of person incharge and responsible for the conduct of business of the company - Notice to company - Director or person incharge and responsible for the conduct of business of company cannot be prosecuted when notice is not issued to him - Statutory notice to every person, including Director, who is sought to be prosecuted is mandatory. (B.Raman & Ors. Vs Shasun Chemicals & Drugs Ltd.) 2007(2) Criminal Court Cases 878 (Madras) (DB) : 2007(3) Civil Court Cases 037 (Madras) (DB) Negotiable Instruments Act, 1881, Ss.138, 141 - Dishonour of cheque - Company - Notice - Prosecution of person incharge and responsible for the conduct of business of the company - Statutory notice to every person, including Director, who is sought to be prosecuted, is mandatory. (B.Raman & Ors. Vs Shasun Chemicals & Drugs Ltd.) 2007(2) Criminal Court Cases 878 (Madras) (DB) : 2007(3) Civil Court Cases 037 (Madras) (DB) Negotiable Instruments Act, 1881, Ss.138, 141 - Dishonour of cheque - Company - Persons sought to be made criminally liable - Liability arises from being in-charge of and responsible for conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. (Kapal Mehra Vs Indusind Enterprises and Finance Ltd.) 2007(4) Civil Court Cases 681 (Bombay) : 2007(4) Criminal Court Cases 967 (Bombay)
Negotiable Instruments Act, 1881, Ss.138, 141 - Dishonour of cheque - Notice sent - Accused sent a reply - Complaint filed but no mention made of reply notice in the complaint nor in sworn statement - Not a ground to quash complaint. (M.K.Bajoria, Director, Marshall Sons & Co. (Mfg.) Ltd. & Ors. Vs M/s.Lalith Steel Suppliers) 2007(3) Criminal Court Cases 179 (Madras) Negotiable Instruments Act, 1881, Ss.138, 141, Criminal Procedure Code, 1973, S.482 - Dishonour of cheque - Company - It is necessary to specifically aver in complaint that at the time offence was committed, the person accused was in-charge of and responsible for conduct of business of company - Without such an averment in complaint the requirement of S.141 cannot be said to be satisfied - No such averment in complaint - Complaint qua petitioner quashed. (Hazi Abadullah & Ors. Vs State of Rajasthan & Anr.) 2007(1) Criminal Court Cases 393 (Rajasthan) : 2007(2) Civil Court Cases 110 (Rajasthan) Negotiable Instruments Act, 1881, Ss.138, 142 - Dishonour of cheque - Company - Summoning order on basis of Affidavit - Non examination of the concerned official who deposed in support of the complainant - Summoning order quashed - Matter remitted for reconsideration. (T.C.I. Infrastructure (Fina) Vs Housing And Urban Dev. Corp.) 2007(4) Civil Court Cases 347 (Delhi) : 2007(4) Criminal Court Cases 446 (Delhi) Negotiable Instruments Act, 1881, Ss.138, 142 - Dishonour of cheque - Complaint - Delay - Cannot be condoned without notice to accused. (Sajjan Kumar Jhunjhunwala & Ors. Vs M/s.Eastern Roadways Pvt.Ltd.) 2007(3) Civil Court Cases 203 (Karnataka) : 2007(3) Criminal Court Cases 103 (Karnataka) Negotiable Instruments Act, 1881, Ss.138, 142 - Dishonour of cheque - Complaint beyond period of limitation - Court can take cognizance on sufficient cause - Amendment in provision of S.142 of the Act is retrospective in nature and is applicable to pending cases. (Kumudben Jayantilal Mistry Vs State of Gujarat & Anr.) 2007(3) Criminal Court Cases 631 (Gujarat) : 2007(4) Civil Court Cases 535 (Gujarat) Negotiable Instruments Act, 1881, Ss.138, 142 - Dishonour of cheque - Co-operative Society - President on behalf of Society can file complaint. (Madan Lal Verma Vs A.S.Ranga) 2007(2) Civil Court Cases 399 (P&H) : 2007(2) Criminal Court Cases 675 (P&H) Negotiable Instruments Act, 1881, Ss.138, 142(a) - Dishonour of cheque - Company - Complaint by one of its Directors - Complaint filed by Director without authorisation from Board of Directors - Held, on such a complaint no process can be issued much less a conviction imposed. (Ashok Bampto Pagui Vs Agencia Real Canacona Pvt. Ltd. & Anr.) 2007(4) Civil Court Cases 808 (Bombay) : 2007(4) Criminal Court Cases 868 (Bombay) Negotiable Instruments Act, 1881, Ss.138, 142(b) - Dishonour of cheque - Delay in filing complaint - Cognizance wrongly taken - Accused discharged. (Birendra Kumar Singh Vs State of Bihar & Anr.) 2007(4) Criminal Court Cases 884 (Patna) Negotiable Instruments Act, 1881, Ss.138, 142(b) (As amended), Limitation Act, 1963, S.5 - Dishonour of cheque - Complaint - Limitation - Filing of complaint after period of limitation - It is open to Court to take cognizance of complaint made after prescribed period, if complainant satisfies Court that he had sufficient cause for not making complaint within prescribed period. (Ranjitha Balasubramanian & Anr. Vs Shanthi Group, Bangalore & Ors.) 2007(2) Civil Court Cases 362 (Karnataka) : 2007(2) Criminal Court Cases 475 (Karnataka) Negotiable Instruments Act, 1881, Ss.138, 142, 145 - Dishonour of cheque - Complaint - Magistrate is obliged and duty bound to examine upon oath the complainant and his witnesses before issuance of process though there is a solemn affirmation at the foot of the complaint by the complainant. (Maharaja Developers & Anr. Vs Udaysingh Pratapsinghrao Bhonsle & Anr.) 2007(3) Criminal Court Cases 465 (Bombay) (DB) : 2007(4) Civil Court Cases 212 (Bombay) (DB) Negotiable Instruments Act, 1881, Ss.138, 142, 145, Criminal Procedure Code, 1973, S.204 - Dishonour of cheque - Complaint - Issuance of process - Provision of S.200 Cr.P.C. applies. (Maharaja Developers & Anr. Vs Udaysingh Pratapsinghrao Bhonsle & Anr.) 2007(3) Criminal Court Cases 465 (Bombay) (DB) : 2007(4) Civil Court Cases 212 (Bombay) (DB) Negotiable Instruments Act, 1881, Ss.138, 143 (As amended) - Dishonour of cheque - Fine exceeding Rs.5,000/- can be imposed in view of amended provision of S.143 of the Act. (Rajendra B.Choudhari Vs State of Maharashtra & Anr.) 2007(2) Civil Court Cases 523 (Bombay) (DB) Negotiable Instruments Act, 1881, Ss.138, 143 (As amended) Dishonour of cheque - Fine exceeding Rs.5,000/- can be imposed in view of amended provision of S.143 of the Act. (Rajendra B.Choudhari Vs State of Maharashtra & Anr.) 2007(2) Criminal Court Cases 748 (Bombay) (DB) Negotiable Instruments Act, 1881, Ss.138, 147 - Offence u/s 138 is compoundable without permission of Court. (Sabu George & etc. Vs Home Secretary, Department of Home Affairs, New Delhi & Anr.) 2007(4) Criminal Court Cases 419 (Kerala) Negotiable Instruments Act, 1881, Ss.138, 147, Criminal Procedure Code, 1973, Ss.320 and 401 - Dishonour of cheque - Conviction - Revision against - Compounding of offence - Compounding of offence under S.138 NI Act can be done during trial of case as well as by the High Court or Court or Session while acting in exercise of its power of revision under S.401 Cr.P.C. (Ramesh Chander Vs State of Haryana & Anr.) 2007(2) Civil Court Cases 439 (P&H) : 2007(2) Criminal Court Cases 351 (P&H) Negotiable Instruments Act, 1881, Ss.138, 147, Criminal Procedure Code, 1973, Ss.320, 362 - Compounding of offence after verdict of conviction and sentence becomes final - In such a case High Court can exercise its power u/s 482 Cr.P.C. as also under Article 226 and 227 of Constitution - In such a case power u/s 482 Cr.P.C. can be invoked after disposal of revision notwithstanding the bar u/s 362 Cr.P.C. (Sabu George & etc. Vs Home Secretary, Department of Home Affairs, New Delhi & Anr.) 2007(4) Criminal Court Cases 419 (Kerala) Negotiable Instruments Act, 1881, Ss.138, 20 - Dishonour of cheque - Blank cheque - It is open to a person to sign and deliver a blank or incomplete cheque and is equally open for the holder of cheque to fill up blanks and specify the amount therein. (Purushottam Vs Manohar K.Deshmukh & Anr.) 2007(1) Criminal Court Cases 682 (Bombay) : 2007(1) Civil Court Cases 423 (Bombay) Negotiable Instruments Act, 1881, Ss.138, 20 - Dishonour of cheque - Undated cheque - When a drawer deliver a signed cheque, he gives an authority to the holder to put a date of his choice. (Purushottam Vs Manohar K.Deshmukh & Anr.) 2007(1) Criminal Court Cases 682 (Bombay) : 2007(1) Civil Court Cases 423 (Bombay) Negotiable Instruments Act, 1881, Ss.138, 30 - Dishonour of cheque - Compensation - When dishonour of cheque takes place, certainly the holder is entitled to be compensated. (Sathyan Ayyappa Sathyan Vs Yousu & Anr.) 2007(3) Civil Court Cases 639 (Kerala) : 2007(3) Criminal Court Cases 889 (Kerala) Negotiable Instruments Act, 1881, Ss.138, 43 - Dishonour of cheque - Lending of money - Cheque issued before amount given by complainant - Cheque is one issued in discharge of the debt or liability coming u/s 138 of the Act - However, in case cheque is issued in anticipation of lending money but money is not given to the borrower then consideration fails and S.43 of the Act comes into play. (George Vs Kamarudeen) 2007(2) Civil Court Cases 112 (Kerala) : 2007(2) Criminal Court Cases 278 (Kerala) Negotiable Instruments Act, 1881, Ss.139, 118 - Dishonour of cheque - Presumption - Cheque issued to discharge liability under a promissory note - When presumption u/s 139 can be drawn it is superfluous and unnecessary to draw or bank on the presumption u/s 118 of the Act - As the graver presumption of existence of consideration of a specified variety, is available it is not necessary at all to go back to the presumption u/s 118(a) of the Act. (P.N.Gopinathan Vs Sivadasan & Anr.) 2007(1) Civil Court Cases 729 (Kerala) : 2007(1) Criminal Court Cases 1077 (Kerala) Negotiable Instruments Act, 1881, Ss.139, 138, 118 - Dishonour of cheque - Cheque issued to discharge liability under a promissory note - Presumption under Ss.118 and 139 can be invoked when cheque is issued for discharge of a liability already existing under the promissory note. (P.N.Gopinathan Vs Sivadasan & Anr.) 2007(1) Civil Court Cases 729 (Kerala) : 2007(1) Criminal Court Cases 1077 (Kerala) Negotiable Instruments Act, 1881, S.139 - Dishonour of cheque - Legally enforceable debt - Cheque is a promise made in writing to pay certain sum - There is a legally enforceable liability. (Purushottam Vs Manohar K.Deshmukh & Anr.) 2007(1) Criminal Court Cases 682 (Bombay) : 2007(1) Civil Court Cases 423 (Bombay) Negotiable Instruments Act, 1881, S.139 - Dishonour of cheque - Presumption - Available only till contrary is proved by the accused - A fact is said to be proved when the court on a consideration of the matters before it believes in its existence or considers its existence so probable that a prudent man ought to proceed under the circumstances of the particular case on the supposition that such fact exists. (Johnson Scaria Vs State of Kerala) 2007(1) Civil Court Cases 196 (Kerala) : 2007(1) Criminal Court Cases 161 (Kerala) Negotiable Instruments Act, 1881, S.139 - Dishonour of cheque - Presumption - Rebuttal - Theory of handing over a blank signed cheque as security - Burden rests squarely and heavily on the indictee who wants to attribute to himself such an improbable and artificial conduct to claim exculpation from lability - The silence and inaction of accused on receipt of demand notice and his omission to raise the contentions now raised are vital and crucial significance when a court tries to evaluate the acceptability of the contention adopting the yardstick of a prudent man. (Aniyan Thomas Chacko Vs The Varvelil Bankers & Anr.) 2007(1) Civil Court Cases 262 (Kerala) : 2007(1) Criminal Court Cases 236 (Kerala) Negotiable Instruments Act, 1881, S.139 - Dishonour of cheque - Rebuttal of presumption - Onus is not as heavy as that of prosecution and may be compared with defendant in Civil Case - Rebuttal of presumption contemplated u/s 139 requires only probable defence and standard of proof is preponderance of probabilities. (Lakshmi Srinivas Savings & Chit Funds Syndicate Pvt. Ltd. Vs S.Bhojarajan) 2007(2) Civil Court Cases 803 (Madras) : 2007(2) Criminal Court Cases 562 (Madras) Negotiable Instruments Act, 1881, S.139 - Dishonour of cheque - To draw presumption under S.139 of the act complainant has to prove execution and issue of cheque - Admission of signature in a cheque goes a long way to prove due execution - Possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque. (Johnson Scaria Vs State of Kerala) 2007(1) Civil Court Cases 196 (Kerala) : 2007(1) Criminal Court Cases 161 (Kerala) Negotiable Instruments Act, 1881, S.139 - Presumption - Available only qua the purpose for which the cheque is received i.e for discharge of a debt or liability - Court cannot presume that cheque is issued/executed/drawn by the accused. (Kamalammal Vs C.K.Mohanan & Anr.) 2007(3) Civil Court Cases 237 (Kerala) : 2007(3) Criminal Court Cases 168 (Kerala) Negotiable Instruments Act, 1881, S.139 - Presumption - Available only when cheque is received by holder - Cheque can be received in many ways i.e it can be handed over, it could be as a finder of a lost or misplaced cheque, it could be taken away by force, it could be by committing theft - Held, for drawing presumption u/s 139 of the Act, Court must be satisfied that the holder of the cheque "received" the cheque by entitlement and that he did not procure it by any other means. (Kamalammal Vs C.K.Mohanan & Anr.) 2007(3) Civil Court Cases 237 (Kerala) : 2007(3) Criminal Court Cases 168 (Kerala) Negotiable Instruments Act, 1881, S.139 - Presumption - Available only when three conditions are satisfied viz. (1) that the person in whose favour the presumption is drawn is the holder of the cheque; (2) that the cheque is of the nature stated in section 138 of the Act; (3) that such cheques is "received" by the holder. (Kamalammal Vs C.K.Mohanan & Anr.) 2007(3) Civil Court Cases 237 (Kerala) : 2007(3) Criminal Court Cases 168 (Kerala) Negotiable Instruments Act, 1881, S.139 - Presumption - Burden to prove - If the holder of cheque has to avail of the benefit of the presumption under section 139 of the Act, the burden is on him to establish all the pre-requisites for drawing such presumption. (Kamalammal Vs C.K.Mohanan & Anr.) 2007(3) Civil Court Cases 237 (Kerala) : 2007(3) Criminal Court Cases 168 (Kerala)
Negotiable Instruments Act, 1881, S.139 - Presumption - Rebuttal - Presumption need not be rebutted only by leading defence evidence - Presumption can be rebutted even on the basis of fact elicited in the cross examination of the complainant. (M.Senguttuvan Vs Mahadevaswamy) 2007(3) Civil Court Cases 687 (Karnataka) : 2007(3) Criminal Court Cases 337 (Karnataka)
Negotiable Instruments Act, 1881, S.139, Evidence Act, 1872, S.105 - Dishonour of cheque - Presumption under S.139 of the Act - Rebuttal - Discharge of burden - To lead evidence is not necessary to discharge the burden - Accused can rely on the broad improbabilities in the case of the prosecution, the improbabilities in the evidence of the witnesses of the prosecution, the acceptability of suggestions made to the prosecution witnesses in the course of cross examination as also defence evidence if any - All circumstances which he as an accused could have relied on to discharge his burden under S.105 of the Evidence Act can be made use of by him to discharge the burden under S.139 of the N.I. Act also. (Johnson Scaria Vs State of Kerala) 2007(1) Civil Court Cases 196 (Kerala) : 2007(1) Criminal Court Cases 161 (Kerala) Negotiable Instruments Act, 1881, Ss.142, 138 - Dishonour of cheque - Condonation of delay - An application or affidavit in support of application for condonation of delay is not necessary - Sufficient cause can be shown in the complaint itself or in the application for condonation of delay or in the affidavit, if any, or in other materials which would be sufficient to satisfy the Court that the complainant had sufficient cause for not filing the complaint within the specified period. (Abdurehiman Vs Sethu Madhavan) 2007(1) Civil Court Cases 240 (Kerala) (DB) Negotiable Instruments Act, 1881, Ss.142, 138 - Dishonour of cheque - Condonation of delay - If there is a delay in filing complaint Court should give notice to the respondent and after hearing the respondent Court should satisfy itself as to whether complainant had sufficient cause for not making the complaint within the specified period - A detailed inquiry giving opportunity to the parties to adduce oral evidence is not necessary at the stage of taking cognizance to decide whether delay deserves to be condoned under S.142 of the Act. (Abdurehiman Vs Sethu Madhavan) 2007(1) Civil Court Cases 240 (Kerala) (DB) |
Negotiable Instruments Act, 1881, S.138 - Notice - 'Giving notice' is not the same as 'receipt of notice' - Giving is a process of which receipt is the accomplishment - It is for the payee to perform the former process by sending the notice to the drawer at the correct address - Once notice is dispatched his part is over and the next depends on what the sendee does. (C.C.Alavi Haji Vs Palapetty Muhammed & Anr.) 2007(2) Apex Court Judgments 526 (S.C.) : 2007(3) Civil Court Cases 001 (S.C.) : 2007(3) Criminal Court Cases 037 (S.C.)