{"id":545,"date":"2020-04-23T10:29:59","date_gmt":"2020-04-23T10:29:59","guid":{"rendered":"http:\/\/lexforti.com\/legal-news\/?p=545"},"modified":"2021-01-17T11:47:08","modified_gmt":"2021-01-17T11:47:08","slug":"eight-important-cases-on-dishonor-of-cheque","status":"publish","type":"post","link":"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/","title":{"rendered":"Eight Important cases on Dishonor of Cheque"},"content":{"rendered":"\n<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_47_1 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title\">Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"ez-toc-toggle-icon-1\"><label for=\"item-6a22452d9a207\" aria-label=\"Table of Content\"><span style=\"display: flex;align-items: center;width: 35px;height: 30px;justify-content: center;direction:ltr;\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/label><input  type=\"checkbox\" id=\"item-6a22452d9a207\"><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><ul class='ez-toc-list-level-4'><li class='ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/#Ronita_Biswas_National_Law_University_Orissa_31st_January_2020\" title=\" Ronita Biswas | National Law University, Orissa | 31st January 2020 \"> Ronita Biswas | National Law University, Orissa | 31st January 2020 <\/a><\/li><\/ul><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/#THE_STANDARD_OF_PROOF_FOR_REBUTTING_THE_PRESUMPTION_UNDER_S139_OF_THE_NI_ACT_IS_THAT_OF_PREPONDERANCE_OF_PROBABILITIES\" title=\"THE STANDARD OF PROOF FOR REBUTTING THE PRESUMPTION UNDER S.139 OF THE NI ACT IS THAT OF PREPONDERANCE OF PROBABILITIES.\">THE STANDARD OF PROOF FOR REBUTTING THE PRESUMPTION UNDER S.139 OF THE NI ACT IS THAT OF PREPONDERANCE OF PROBABILITIES.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/#THE_FACT_THAT_THE_ACCUSED_FAILED_TO_REPLY_TO_THE_STATUTORY_NOTICE_UNDER_S138_LEADS_TO_THE_INFERENCE_THAT_THERE_IS_MERIT_IN_THE_COMPLAINANT%E2%80%99S_VERSION\" title=\"THE FACT THAT THE ACCUSED\nFAILED TO REPLY TO THE STATUTORY NOTICE UNDER S.138\u00a0 LEADS TO THE INFERENCE THAT THERE IS MERIT IN\nTHE COMPLAINANT&#8217;S VERSION\">THE FACT THAT THE ACCUSED\nFAILED TO REPLY TO THE STATUTORY NOTICE UNDER S.138\u00a0 LEADS TO THE INFERENCE THAT THERE IS MERIT IN\nTHE COMPLAINANT&#8217;S VERSION<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/#THE_COURT_WITHIN_WHOSE_LIMITS_THE_BANK_ON_WHICH_THE_CHEQUE_IS_DRAWN_IS_SITUATED_WOULD_HAVE_THE_JURISDICTION_TO_ADJUDICATE_THE_COMPLAINT\" title=\"THE COURT WITHIN WHOSE\nLIMITS THE BANK ON WHICH THE CHEQUE IS DRAWN IS SITUATED WOULD HAVE THE\nJURISDICTION TO ADJUDICATE THE COMPLAINT.\">THE COURT WITHIN WHOSE\nLIMITS THE BANK ON WHICH THE CHEQUE IS DRAWN IS SITUATED WOULD HAVE THE\nJURISDICTION TO ADJUDICATE THE COMPLAINT.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/#COGNIZANCE_OF_COMPLAINT_MAY_BE_TAKEN_BY_THE_COURT_AFTER_THE_PRESCRIBED_PERIOD_IF_THE_COMPLAINANT_PROVIDES_SUFFICIENT_CAUSE_FOR_THE_DELAY\" title=\"COGNIZANCE OF COMPLAINT MAY BE TAKEN BY THE COURT AFTER THE PRESCRIBED PERIOD IF THE COMPLAINANT PROVIDES SUFFICIENT CAUSE FOR THE DELAY\">COGNIZANCE OF COMPLAINT MAY BE TAKEN BY THE COURT AFTER THE PRESCRIBED PERIOD IF THE COMPLAINANT PROVIDES SUFFICIENT CAUSE FOR THE DELAY<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/#MERE_DENIAL_WOULD_NOT_FULFIL_THE_REQUIREMENTS_OF_REBUTTAL_AS_ENVISAGED_UNDER_S_118_AND_139_OF_THE_NI_ACT\" title=\"MERE DENIAL WOULD NOT FULFIL THE REQUIREMENTS\u00a0OF\u00a0REBUTTAL AS ENVISAGED UNDER S. 118 AND 139\u00a0OF\u00a0THE NI ACT\">MERE DENIAL WOULD NOT FULFIL THE REQUIREMENTS\u00a0OF\u00a0REBUTTAL AS ENVISAGED UNDER S. 118 AND 139\u00a0OF\u00a0THE NI ACT<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/#WHEN_THERE_IS_DISPUTE_ABOUT_MANNER_OF_RECEIPT_OF_CHEQUE_BY_THE_COMPLAINANT_INITIAL_PRESUMPTION_UNDER_SECTION_118G_WILL_NOT_BE_USEFUL\" title=\"WHEN THERE IS DISPUTE ABOUT MANNER OF RECEIPT OF CHEQUE BY THE COMPLAINANT, INITIAL PRESUMPTION UNDER SECTION 118(G) WILL NOT BE USEFUL.\">WHEN THERE IS DISPUTE ABOUT MANNER OF RECEIPT OF CHEQUE BY THE COMPLAINANT, INITIAL PRESUMPTION UNDER SECTION 118(G) WILL NOT BE USEFUL.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/#EXISTENCE_OF_A_LEGALLY_ENFOREABLE_DEBT_OR_LIABILITY_IS_ESSENTIAL_UNDER_S138_OF_THE_NI_ACT\" title=\"EXISTENCE OF A LEGALLY ENFOREABLE DEBT OR LIABILITY IS ESSENTIAL UNDER S.138 OF THE NI ACT\">EXISTENCE OF A LEGALLY ENFOREABLE DEBT OR LIABILITY IS ESSENTIAL UNDER S.138 OF THE NI ACT<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/#SECTION_148_OF_THE_NI_ACT_HAS_RETROSPECTIVE_APPICATION_SC\" title=\"SECTION 148 OF THE NI ACT HAS RETROSPECTIVE APPICATION: SC\">SECTION 148 OF THE NI ACT HAS RETROSPECTIVE APPICATION: SC<\/a><\/li><\/ul><\/nav><\/div>\n<h4 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"Ronita_Biswas_National_Law_University_Orissa_31st_January_2020\"><\/span><em> <a href=\"https:\/\/www.linkedin.com\/in\/ronita-biswas-a6869116a\">Ronita Biswas | National Law University, Orissa | 31st January 2020 <\/a><\/em><span class=\"ez-toc-section-end\"><\/span><\/h4>\n\n\n\n<h3 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"THE_STANDARD_OF_PROOF_FOR_REBUTTING_THE_PRESUMPTION_UNDER_S139_OF_THE_NI_ACT_IS_THAT_OF_PREPONDERANCE_OF_PROBABILITIES\"><\/span><strong>THE STANDARD OF PROOF FOR REBUTTING THE PRESUMPTION UNDER S.139 OF THE NI ACT IS THAT OF PREPONDERANCE OF PROBABILITIES.<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h3>\n\n\n\n<p><strong>Harendra Ramchandra Pathak v. Rajendra Ratan Mhatre Adult (2020 SCC OnLine Bom 57)<\/strong><\/p>\n\n\n\n<p>The appellant and\nrespondent had business relations. Complainant stated that the accused was liable\nto pay him some money on account of several transactions. The accused agreed to\npay a sum of Rs. 32 lakhs. The accused issued a cheque of the required sum;\nhowever the cheque came to be dishonoured with the endorsement \u2018refer to\ndrawer\u2019. Appellant issued a notice through his advocate as per s. 138 of NI\nAct. However, the amount was not paid and the suit was filed. Respondent denied\nliability and claimed to be tried. He alleged that the cheque did not bear his\nsignature and he did not issue the same. Hence, nothing was payable to the\nappellant. In the cross-examination, it was found out that accused used to\nleave blank cheques with the complainant signed by him for business purposes. <\/p>\n\n\n\n<p>Section 139 provides for\npresumption in favour of the holder, and this presumption is rebuttable and the\nonus is on the accused to raise the probable defence. Reliance was placed on\nBasalingappa v. Mudibasappa (1 2019 5 SCC 418), wherein the SC laid down some\nimportant principles.<\/p>\n\n\n\n<p>\u00a0(i) Once the execution of cheque is admitted,\ns. 139 of the Act mandates a presumption that the cheque was for the discharge\nof any debt or other liability.<\/p>\n\n\n\n<p>(ii) The presumption\nunder s. 139 is a rebuttable presumption and the onus is on the accused to\nraise the probable defence. The standard of proof for rebutting the presumption\nis that of preponderance of probabilities.<\/p>\n\n\n\n<p>(iii) To rebut the\npresumption, it is open for the accused to rely on evidence led by him or\naccused can also rely on the materials submitted by the complainant in order to\nraise a probable defence. Inference of preponderance of probabilities can be\ndrawn not only from the materials brought on record by the parties but also by\nreference to the circumstances upon which they rely.<\/p>\n\n\n\n<p>(iv)That it is not\nnecessary for the accused to come in the witness box in support of his defence,\ns.139 imposed an evidentiary burden and not a persuasive burden.<\/p>\n\n\n\n<p>(v) It is not necessary\nfor the accused to come in the witness box to support his defence.<\/p>\n\n\n\n<p>In the cross examination,\ncomplainant stated that the name, amount and date mentioned in the cheque were\nnot in the hand writing of accused. The defence argued that complainant misused\none of the cheques and filled up the details. When we correlate both these\nstatements, the Court found that the accused had proved his claim by\npreponderance of evidence. <\/p>\n\n\n\n<h3 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"THE_FACT_THAT_THE_ACCUSED_FAILED_TO_REPLY_TO_THE_STATUTORY_NOTICE_UNDER_S138_LEADS_TO_THE_INFERENCE_THAT_THERE_IS_MERIT_IN_THE_COMPLAINANT%E2%80%99S_VERSION\"><\/span>THE FACT THAT THE ACCUSED\nFAILED TO REPLY TO THE STATUTORY NOTICE UNDER S.138\u00a0 LEADS TO THE INFERENCE THAT THERE IS MERIT IN\nTHE COMPLAINANT&#8217;S VERSION<span class=\"ez-toc-section-end\"><\/span><\/h3>\n\n\n\n<p><strong>Sreejith Pulikkodan v. Rama and Another (2020 SCC OnLine Ker 116)<\/strong><\/p>\n\n\n\n<p>The complainant and the\naccused were acquainted with each other. The accused had borrowed a total\namount of Rs. 7,00,000\/- from the complainant. When the complainant demanded\nthe accused to repay the amount, the accused issued three cheques to her, one\ncheque for Rs. 2,00,000\/-, another cheque for Rs. 3,00,000\/- and yet another\ncheque for Rs. 2,00,000\/-, in discharge of the liability. The said cheques were\ndishonoured since there was insufficient balance amount in the account of the\naccused. When the complainant sent a lawyer\u2019s notice for demanding payment, the\naccused did not pay the same.<\/p>\n\n\n\n<p>The plea of the accused\nwas that the complainant and he were living together and that the complainant\nhad clandestinely and fraudulently taken the signed blank cheques which were\nkept by him in the house and misused them. No evidence was adduced by the\naccused to prove the plea. The plea raised by the accused was not at all\nprobable. The petitioner mainly raised three contentions before the Court:-<\/p>\n\n\n\n<p>1. The complainant had\nnot proved execution of cheques by the accused.<\/p>\n\n\n\n<p>2. The complaint does not\ncontain details of the transactions between the petitioner and the complainant.<\/p>\n\n\n\n<p>The Court rejected the\nfirst contention. The accused had pleaded that the signed blank cheques kept by\nhim at the house were taken by the complainant already contains the implied\nadmission that the cheques bear his signature. He did not adduce any evidence\nto prove the aforesaid plea raised by him.<\/p>\n\n\n\n<p>The fact that the notice\nof demand, though duly received and acknowledged by the accused, did not evoke\nany response from him is a crucial circumstance against him. The very fact that\nthe accused failed to reply to the statutory notice under s.138 of the Act\nleads to the inference that there is merit in the complainant&#8217;s version ( See\nRangappa v. Mohan: (2010) 11 SCC 441 : AIR 2010 SC 1898).<\/p>\n\n\n\n<p>Another contention raised\nby the accused is that the complaint does not contain the details of the\ntransactions between the complainant and the accused. There is no invariable\nrule that absence of details regarding the original transaction in the\ncomplaint would make the evidence given by the complainant unreliable or the\ncase set up by him improbable. \u00a0Since the\naccused did not challenge how his cheque, which bears his signature, happened\nto be in the possession of the complainant, absence of details regarding the\noriginal transaction in the complaint will not affect the credibility of the\nevidence given by the complainant in that regard.<\/p>\n\n\n\n<p>The HC found the accused\nguilty. It was to be noted that the gravity of an offence under s.138 of the\nAct cannot be equated with an offence under the IPC or other criminal offences.\nAn offence under s.138 of the Act is almost in the nature of a civil wrong\nwhich has been given criminal overtones (See Kaushalya Devi Massand v.\nRoopkishore: (2011) 4 SCC 593 : AIR 2011 SC 2566). <\/p>\n\n\n\n<h3 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"THE_COURT_WITHIN_WHOSE_LIMITS_THE_BANK_ON_WHICH_THE_CHEQUE_IS_DRAWN_IS_SITUATED_WOULD_HAVE_THE_JURISDICTION_TO_ADJUDICATE_THE_COMPLAINT\"><\/span>THE COURT WITHIN WHOSE\nLIMITS THE BANK ON WHICH THE CHEQUE IS DRAWN IS SITUATED WOULD HAVE THE\nJURISDICTION TO ADJUDICATE THE COMPLAINT.<span class=\"ez-toc-section-end\"><\/span><\/h3>\n\n\n\n<p><strong>Apparel Export Promotion Council v. Collage Culture &#038; Ors. (2020 SCC OnLine Del 94)<\/strong><\/p>\n\n\n\n<p>The appellant was a company\nincorporated under s. 25 of Companies Act, 1956, sponsored by the GOI. It was\nformed with the object of promoting exports of readymade garments from India to\nvarious parts of the world. As a part of its mandate, all persons exporting\ngarments from India to the rest of the world were required to be registered\nwith the appellant. The respondent was a partnership firm registered with the\nappellant. The respondent issued seven cheques for revalidation of its Past\nPerformance Entitlement (PPE). When the said cheques were presented for\nencashment, they were dishonoured indicating insufficient funds. <\/p>\n\n\n\n<p>The appellant filed a\ncomplaint under s.138 of the NI Act. Thereafter, bailable warrants were issued\nagainst the accused persons, as they failed to appear. The respondent filed a\npetition, praying that the subject summoning order be recalled and the complaint\nunder s. 138 of the NI Act be dismissed. The petition was allowed. Aggrieved by\nthis, the appellant filed a SLP under Article 136 of the Constitution of India\nbefore SC. The SC allowed the same and directed the Trial Court to proceed with\nthe trial, but not pass the final judgment without the leave of the SC. On the\nbasis of this order, the appellant filed an application to revive its\ncomplaint.<\/p>\n\n\n\n<p>The SC, in the matter of <em>Dashrath Rupsingh Rathod v. State of\nMaharashtra: (2014) 9 SCC 129,<\/em> held that s.177 of the Cr.P.C. was required\nto be complied with and only the court exercising territorial jurisdiction\nwhere the offence was committed \u2013 i.e., where the cheque was dishonoured-could\nentertain a complaint under s.138 of the NI Act. Thus, the Court of the\nMetropolitan Magistrate (\u2018MM\u2019), within whose limits the bank on which the\ncheque is drawn is situated, would have the jurisdiction to adjudicate the\ncomplaint.<\/p>\n\n\n\n<p>Thereafter, the appellant\nre-filed the complaint before the court having jurisdiction. The MM dismissed\nthe complaint on the ground that it was barred by limitation. The impugned\norder indicated three reasons for the same-<\/p>\n\n\n\n<p>1. In terms of the\ndirections issued in Dashrath Rupsingh Rathod (supra), the complaint was to be\nreturned and could be re-filed within thirty days. That is, thirty days from\nthe date of the order, returning the complaint. The present case was after\nexpiry of approximately one year and two months of the order returning the\ncompliant.<\/p>\n\n\n\n<p>2. In view of s.142A (1)\nand (2) of the NI Act, as inserted by the Negotiable Instruments (Amendment)\nOrdinance, 2015 all pending cases were to be transferred to the court having\ncompetent jurisdiction. However, the present case was not pending before any\ncourt of MM and there was no provision in the Ordinance to restore the case.<\/p>\n\n\n\n<p>3. That the SC had not\nstayed the proceedings before the Trial Court. Therefore, the contention that\nthe appellant was awaiting the final decision in its appeal pending before the\nSC, could not be accepted as a ground for not refiling the complaint within the\nstipulated period.<\/p>\n\n\n\n<p>The appellant challenged\nthis order before the HC.<\/p>\n\n\n\n<p>The Court clarified the application of the amended\nNI Act. In terms\u00a0of\u00a0s. 142(A) (1)\u00a0of\u00a0the NI\nAct (which was enacted with retrospective effect from 15.06.2015), all cases\narising out\u00a0of\u00a0s.138\u00a0of\u00a0the NI Act that were pending in any\nCourt were directed to be transferred to court having jurisdiction under s.\n142(2)\u00a0of\u00a0the NI Act, as if the said provision was in force at all\nmaterial times. Thus, if a complaint under s. 138\u00a0of\u00a0the NI Act\nwas pending in a Court that otherwise did not have jurisdiction it would be\ntransferred to the Court having jurisdiction in terms\u00a0of\u00a0s.\n142(2)\u00a0of\u00a0the NI Act. However, in the present case, the appellant&#8217;s\ncomplaint was dismissed by the order of the MM and was not pending.<\/p>\n\n\n\n<p>The SC in order to\nobviate and avoid any legal complications, directed that all complaint cases\nwhere proceedings had reached the stage of Section 145(2) of the NI Act or\nbeyond \u2013i.e., cases where persons giving evidence had been summoned and examined\n&#8211; would be deemed to be transferred from the court ordinarily possessing\nterritorial jurisdiction to the court where the complaint had been filed. In\nthe present case, the complaint had not reached the stage of Section 145(2) of\nthe NI Act and thus the M.M. did not have the jurisdiction to try the said\ncomplaint. <\/p>\n\n\n\n<p>The appellant was\nthereafter required to re-file the complaint within the period of thirty days.\nThe appellant chose not to re-file the complaint within the prescribed period\nand contended that it was waiting for the decision of the SC. The Court held\nthat once the proceedings before the Trial Court stood revived, the appellant\nwas bound to follow the orders passed in those proceedings, unless the same\nwere stayed. The\nCourt clarified that the thirty days time-period began from the date on which\nthe decision was passed. The fact that the appellant had not physically\ncollected the said complaint would not extend the period, during which it was\nrequired to re-file the same.<\/p>\n\n\n\n<h3 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"COGNIZANCE_OF_COMPLAINT_MAY_BE_TAKEN_BY_THE_COURT_AFTER_THE_PRESCRIBED_PERIOD_IF_THE_COMPLAINANT_PROVIDES_SUFFICIENT_CAUSE_FOR_THE_DELAY\"><\/span><strong>COGNIZANCE OF COMPLAINT MAY BE TAKEN BY THE COURT AFTER THE PRESCRIBED PERIOD IF THE COMPLAINANT PROVIDES SUFFICIENT CAUSE FOR THE DELAY<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h3>\n\n\n\n<p><strong>Birendra Prasad Sah v. State of Bihar and Anr. (2019 7 SCC 273)<\/strong><\/p>\n\n\n\n<p>The instant appeal\nchallenged the order of a Single Bench of the HC, by which an order taking\ncognizance of an offence under s.138 of the NI Act had been quashed.<\/p>\n\n\n\n<p>The dispute arose over\ntwo cheques drawn on SBI in the amt. of Rs. 36, 00,000 and Rs. 13, 00,000 which\nwere returned unpaid. A legal notice was issued by the appellant intimating the\ndishonour of cheque. However, the Postal Dept. could not provide any proof of\nservice. Consequently, a second legal notice was issued. This was replied by\nthe 2<sup>nd<\/sup> respondent. Eventually, a complaint was instituted under s.\n138 of the NI Act.<\/p>\n\n\n\n<p>The Chief Judicial\nMagistrate (CJM) issued summons to the 2<sup>nd<\/sup> respondent, who in turn\ninstituted a revisional proceedings before the Sessions Judge, which were\nrejected. In a further recourse to HC under s. 482 CrPC, the court held that\nthe complaint under s. 138 was not filed within the statutory period of 30\ndays. The proceedings were quashed. The counsel for the appellant argued that\nin <em>MSR Leathers v. S. Palaniappan (2013 1\nSCC 177)<\/em>, the Court had taken the view that issuance of successive notices\nis permissible under s. 138 having regard to the object of the legislation.\nMoreover, since the delay in the institution of the complaint was condoned by\nthe CJM, there was an error on the part of the HC in quashing the proceedings.\nThe counsel of the respondents submitted that the complaint lodged by the\nappellant was beyond the stipulated period from the date of issuance of the\nfirst notice.<\/p>\n\n\n\n<p><strong>Held-<\/strong> The appellant issued a legal notice, which was within 30 days period of the receipt of the memo of dishonour. Hence, the requirement stipulated in proviso (b) to s. 139 was fulfilled.\u00a0 The respondent submitted that the legal notice was not served upon him. The appellant in the complaint specifically stated the circumstances, that despite repeated requests to the Postal Dept., no acknowledgement of notice was furnished. Hence, the appellant was compelled to issue a second notice. Since the notice must be issued within the stipulated period, the Court held that it was the first notice which constituted the cause of action for complaint under s.138. <\/p>\n\n\n\n<p>Under s. 142(1), a\ncomplaint had to be instituted within one month of the date on which the cause\nof action had arisen under clause (c) of the proviso to s.138. The provision\nhowever stipulates that cognizance of the complaint may be taken by the court\nafter the prescribed period if the complainant satisfies the court that he had\nsufficient cause for the delay. The appellant in his complaint had provided\nsufficient reasons for not being able to institute the complaint within the\nstipulated period. <\/p>\n\n\n\n<h3 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"MERE_DENIAL_WOULD_NOT_FULFIL_THE_REQUIREMENTS_OF_REBUTTAL_AS_ENVISAGED_UNDER_S_118_AND_139_OF_THE_NI_ACT\"><\/span><strong>MERE DENIAL WOULD NOT FULFIL THE REQUIREMENTS\u00a0OF\u00a0REBUTTAL AS ENVISAGED UNDER S. 118 AND 139\u00a0OF\u00a0THE NI ACT<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h3>\n\n\n\n<p><strong>Rohitbhai Jivanlal Patel v. State of Gujarat and Anr. (2019 SCC OnLine SC 389)<\/strong><\/p>\n\n\n\n<p>The complainant alleged\nthat he had given a loan to the accused of Rs. 22, 50,000\/- by collecting money\nin piecemeal from his business group. Upon demanding for re-payment, the\naccused gave him cheques of different dates. The complainant alleged that the\ncheques so issued by the accused, were returned unpaid either for the reason\nthat the \u201copening balance was insufficient\u201d or for the reason that the \u201caccount\nwas closed\u201d. The complainant alleged that the accused had intention of breach\nof trust and cheating, and pointed out that despite serving repeated notices on\nthe accused for repayment, the complainant did not receive the requisite\npayment. In some cases, the appellant denied the alleged transactions.\nThereafter, the complainant filed 7 cases against the accused. <\/p>\n\n\n\n<p>The Trial Court concluded\nthat accused was successful in bringing rebuttal evidence to the requisite\nlevel of preponderance of probabilities; and observed that the complainant had\nfailed to prove, beyond all reasonable doubt, that the cheques were issued of\nRs. 22,50,000\/-. Hence, all the 7 complaint cases were dismissed.<\/p>\n\n\n\n<p>The complainant appealed\nbefore the HC. The High Court observed that the presumption under s. 118 and\n139 of the NI Act was required to be drawn. The cheques were issued for\nconsideration and until contrary was proved, such presumption would hold good. Except\nbare denial, nothing was brought on record by the accused to dislodge the proof\nadduced by the complainant. The HC had disapproved the acquittal of the\naccused-appellant and held him guilty under s. 138 of the NI Act.<\/p>\n\n\n\n<p>This judgement was\nchallenged before the SC. The Court addressed the matter in two-fold: as to whether the complainant-respondent\nhad established the ingredients\u00a0of\u00a0s. 118 and\n139\u00a0of\u00a0the NI Act, so as to justify drawing\u00a0of\u00a0the presumption envisaged therein; and if so,\nas to whether the accused-appellant had been able to displace such presumption\nand to establish a probable defence whereby, the onus would again shift to the\ncomplainant?<\/p>\n\n\n\n<p>The Court observed the accused-appellant could not deny his signature on\nthe cheques that had been drawn in favour\u00a0of\u00a0the\ncomplainant on a bank account maintained by the accused. The said cheques were\npresented to the Bank concerned within the period\u00a0of\u00a0their validity\nand were returned unpaid for the reason\u00a0of\u00a0either\nthe balance being insufficient or the account being closed. All the basic\ningredients\u00a0of\u00a0s.138 as also\u00a0of\u00a0s. 118 and 139 were apparent on the face\u00a0of\u00a0the record. Therefore, it is required to be\npresumed that the cheques in question were drawn for consideration and the holder\u00a0of\u00a0the\ncheques i.e., the complainant\nreceived the same in discharge\u00a0of\u00a0an existing debt. The onus, therefore, shifts on the\naccused-appellant to establish a probable defence so as to rebut such a\npresumption.<\/p>\n\n\n\n<p>On preponderance\u00a0of\u00a0probabilities, the accused had to adduce such evidence which\nmay lead the Court to conclude either that the consideration did not exist or\nthat its nonexistence was so probable that a prudent man would act upon the\nplea that the consideration did not exist. When such a presumption is\ndrawn, the factors relating to the want of documentary evidence as regards\nsource of funds were not of relevant consideration while examining if the\naccused has been able to rebut the presumption or not. This Court had emphasized mere denial would not fulfil the requirements\u00a0of\u00a0rebuttal\nas envisaged under s. 118 and 139\u00a0of\u00a0the NI Act.\u00a0<\/p>\n\n\n\n<p>The Trial Court proceeded\nto pass the order of acquittal on the mere ground of \u2018creation of doubt\u2019. The\nCourt opined that the Trial Court appeared to have proceeded on a misplaced\nassumption that by mere denial or mere creation of doubt, the appellant had\nsuccessfully rebutted the presumption as envisaged by s. 139 of the NI Act. The\nCourt upheld the judgement of the HC.<\/p>\n\n\n\n<h3 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"WHEN_THERE_IS_DISPUTE_ABOUT_MANNER_OF_RECEIPT_OF_CHEQUE_BY_THE_COMPLAINANT_INITIAL_PRESUMPTION_UNDER_SECTION_118G_WILL_NOT_BE_USEFUL\"><\/span><strong>WHEN THERE IS DISPUTE ABOUT MANNER OF RECEIPT OF CHEQUE BY THE COMPLAINANT, INITIAL PRESUMPTION UNDER SECTION 118(G) WILL NOT BE USEFUL.<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h3>\n\n\n\n<p><strong>Girdharilal v. State of Maharashtra Through 4th Jt. Civil Judge, Jr. Division &#038; J.M.F.C. and Others (2019 SCC OnLine Bom 5986)<\/strong><\/p>\n\n\n\n<p>In this case, the\naccused-respondent had taken a special defence about issuing the cheque\nvoluntarily. The accused had pleaded that accused no. 3 (director of accused\nno. 1-company) was taken to the factory of Milkiyatsingh Saggu and his\nsignature on the cheque in issue was taken by applying force. The accused was\nhaving some financial dispute with one Milkiyatsingh Saggu. Under the guise of\nsettling that dispute, the complainant took accused No. 3 to the factory of\nMilkiyatsingh. At that place, by threatening the accused No. 3 with the help of\nPistol, he was forced to sign on certain documents including a blank cheque.<\/p>\n\n\n\n<p>Complainant-company and respondent\nno. 1 company both were involved in similar types of business. The complainant\nwas a trader while accused was a manufacturer of steel. The issuance of a\ncheque had arisen out of the transaction of sale of the steel material by the\ncomplainant to respondent No. 1-company. On one hand, complainant contended\nabout dishonour of cheque due to insufficient funds, issuance of a demand\nnotice and consequent failure to repay the amount, whereas, the accused\ncontended about lodging of a complaint with the police.<\/p>\n\n\n\n<p>The Trial Court found\nfavour with the accused. It found shortcomings in the evidence of the\ncomplainant and it concluded that the accused had rebutted the presumption\nrequired to be drawn under s. 139 of the NI Act.<\/p>\n\n\n\n<p>The HC explained relevant\nportions of the NI Act and upheld the decision of the Trial Court.<\/p>\n\n\n\n<ol><li>Section\n118 lays down various presumptions. They are also rebuttable presumptions.\nClause (g) says that holder of a negotiable instrument is always a holder in\ndue course. There is a difference in between the holder as defined under s. 8\nand holder in due course as defined in s. 5 of the said Act. All holders\nneed not always be holder in due course but every holder in due course is\nalways a holder. If the cheque is payable to bearer and if the cheque is\npayable to order, who are holders in due course is laid down in s. 9 of the\nsaid Act. In case the cheque was crossed and account payee cheque it meant, it\nwas payable to order. In that contingency, two persons are described as the\nholders in due course, one category is payee and another category is indorsee. <\/li><\/ol>\n\n\n\n<p>So the payee is the holder in due\ncourse. In the cheque, if name of the person is mentioned, who is entitled to\nrecover the amount is called as a payee under s. 7 of the N.I. Act. The HC\nfound that the name of the complainant was stated in the cheque. Hence, he\nbecame the payee and holder in due course.<\/p>\n\n\n\n<ul><li>The\nnext issue was at what point of time the drawer can deny the holder from\nclaiming the benefit of initial presumption as per clause (g) of s.118 of the\nN.I. Act. The Court found that the complainant cannot take the benefit of\ninitial presumption under s. 118(g) of the N.I. Act. The reason was- there was\na dispute between the parties about voluntary or involuntary issuance of the\ncheque. There are two ingredients for a person to become holder under Section 8\nof the N.I. Act. Entitlement in his own name to possess and entitlement to\nrecover are the two ingredients. So, entitlement is important. It means receipt\nof cheque. A person may receive the cheque in two ways, lawfully as well as\nunlawfully. So when there is dispute about manner of receipt of cheque by the\ncomplainant, initial presumption under Section 118(g) will not be useful.<\/li><\/ul>\n\n\n\n<h3 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"EXISTENCE_OF_A_LEGALLY_ENFOREABLE_DEBT_OR_LIABILITY_IS_ESSENTIAL_UNDER_S138_OF_THE_NI_ACT\"><\/span><strong>EXISTENCE OF A LEGALLY ENFOREABLE DEBT OR LIABILITY IS ESSENTIAL UNDER S.138 OF THE NI ACT<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h3>\n\n\n\n<p><strong>Vishnu S\/O Amthalal Patel v. State of Maharashtra &#038; Anr. (2019 SCC OnLine Bom 106)<\/strong><\/p>\n\n\n\n<p>The complainant and the\naccused were dealing in the same business. At the request of the accused,\ncomplainant had advanced a hand loan of Rs 50,000\/- for expansion of his\nbusiness and the amount was to be repaid within a month. Thus, for repayment of\nthe said amount, the applicant\/accused had issued a cheque. The said cheque was\ndishonoured for insufficiency of funds. When the complainant issued a notice,\nthe accused assured to make arrangement of the funds and accordingly, the\ncomplainant had presented the same cheque again. The cheque was dishonoured for\nthe second time for insufficient funds. Lastly, the complainant issued a legal\nnotice to the accused for repayment. The notice was not complied with and\ntherefore, the complaint came to be filed. <\/p>\n\n\n\n<p>Before the District\nCourt, the accused contended that he had not taken any loan from the\ncomplainant. The applicant\/accused is a Director of Shyona Pulp Mills Pvt\nLtd, and the said company was to pay some amount to the complainant. The\ncomplainant was insisting for the payment. Therefore, accused had issued a\ncheque in question in favour of the complainant for Rs 50,000\/- and later on\nthe company had paid Rs 50,000\/- to the complainant by demand draft, but the\ncheque had remained with the complainant, who had misused the same for filing\nthe present case against the accused. The accused argued that since the\ncomplainant had insisted for his payment in respect of the transaction he\nentered for his company, the applicant\/accused has given said cheque of his\npersonal account till the official payment by the company in respect of the\nsaid transaction of supply of scrap paper to the complainant. The complainant\nhas also admitted in his cross-examination, a DD of Rs 50,000\/- was given to\nhim by the company under the signature of Managing Director. The District court\nconvicted the accused under s. 138 of the NI Act.<\/p>\n\n\n\n<p><strong>Held-<\/strong> The HC found the said cheque issued by the accused cannot be considered a legally enforceable debt or liability. The evidence was short of proving that there exists a legally enforceable debt or liability for which the applicant\/accused has given the said cheque. Hence, the applicant\/accused has discharged the said burden and rebutted the presumption drawn under the aforesaid provisions of the Act.<\/p>\n\n\n\n<h3 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"SECTION_148_OF_THE_NI_ACT_HAS_RETROSPECTIVE_APPICATION_SC\"><\/span><strong>SECTION 148 OF THE NI ACT HAS RETROSPECTIVE APPICATION: SC<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h3>\n\n\n\n<p><strong>Surinder Singh Deswal @ Col. S.S. Deswal &#038; Ors. v. Virendrer Gandhi &#038; Anr. (Criminal Appeal- 1936-1963 of 2019)<\/strong><\/p>\n\n\n\n<p>The Appellants were partners of a\nfirm. Respondent, Virendra Gandhi, was also a partner of the firm, who had\nrecently retired. Total of 63 cheques were issued by the appellant to the\nrespondent against the part payment of the retirement dues. All the cheques\nwere dishonoured due to insufficient funds.<\/p>\n\n\n\n<p>A statutory demand notice was issued\nunder s.138 of the NI Act and complaints were also filed before the Judicial\nMagistrate, 1st class. The Court held the appellant guilty for offences\npunishable under s.138 of the NI Act and they were accordingly convicted. The\nappellants filed an application under s.389 of CrPC for suspension of sentence.\nThe Appellate Court entertained the appeal and suspended the sentence during\nthe pendency of the appeal (subject to deposit of 25% of the amount of\ncompensation awarded by the Trial court in favour of the complainant). The\nappellants preferred an application seeking extension of time to deposit the\namount of 25% of the compensation amount. The Sessions Judge allowed the\napplication. <\/p>\n\n\n\n<p>The appellants filed an application\nunder s.482 CrPC seeking quashing of the order passed by the Appellate Court,\nwhereby the condition to deposit 25% of the amount of compensation was imposed\non the appellant. The HC dismissed the petition of the appellant and other\nconnected petitions. Thereafter, the appellant filed a SLP before the SC\nchallenging the order of the HC. The SC dismissed the criminal appeals arising\nout of the SLPs. Aggrieved by the decision of the HC, the petitioner appealed\nbefore the SC.<\/p>\n\n\n\n<p>Meanwhile, the Appellate Court, in\nview of non-compliance of the order directed the appellants to surrender in the\nTrial Court within 4 days. The appellants were not present when the case was\ntaken up by the Appellate Court. So, a petition was filed under s. 482 of the\nCrPC challenging the order of the Appellate Court.<\/p>\n\n\n\n<p>The appellant argued that the Trial\nCourt\u2019s direction to deposit 25% of the compensation could not have been made\nunder s. 148 of the NI Act. The said section could not be relied on since it\ncame into force on 01.09.2018 and the complaint was filed in the year 2015-\nwhich was much before the enforcement of s.148 of the NI Act.<\/p>\n\n\n\n<p>Further, the appellant submitted that\ns.143A and s. 148 inserted in NI Act by amendment of 2018. Hence s. 148 was not\nattracted in the present case which was only prospective and could have been\nutilised in offences which were committed after 01.09.2018.<\/p>\n\n\n\n<p><strong>Held-<\/strong> The SC while hearing the SLP filed by the appellant held that considering the Statement of Objects and Reasons of the amendment in s. 148 of the N.I. Act, interpreted the amended s.148 of the Act as applicable in respect of the\u00a0 appeals against the order of conviction and sentence for the offence under Section 138 of the N.I. Act, (even in a case where the criminal complaints for the offence under Section 138 of the N.I. Act were filed prior to amendment Act No.20\/2018 i.e. prior to 01.09.2018). <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Ronita Biswas | National Law University, Orissa | 31st January 2020 THE STANDARD OF PROOF FOR REBUTTING THE PRESUMPTION UNDER S.139 OF THE NI ACT IS THAT OF PREPONDERANCE OF PROBABILITIES. Harendra Ramchandra Pathak v. Rajendra Ratan Mhatre Adult (2020 SCC OnLine Bom 57) The appellant and respondent had business relations. Complainant stated that the [&hellip;]<\/p>\n","protected":false},"author":167,"featured_media":370,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[100,68],"tags":[],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v21.8.1 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>Eight Important cases on Dishonor of Cheque - LexForti<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/lexforti.com\/legal-news\/eight-important-cases-on-dishonor-of-cheque\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Eight Important cases on Dishonor of Cheque - LexForti\" \/>\n<meta property=\"og:description\" content=\"Ronita Biswas | National Law University, Orissa | 31st January 2020 THE STANDARD OF PROOF FOR REBUTTING THE PRESUMPTION UNDER S.139 OF THE NI ACT IS THAT OF PREPONDERANCE OF PROBABILITIES. 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Harendra Ramchandra Pathak v. Rajendra Ratan Mhatre Adult (2020 SCC OnLine Bom 57) The appellant and respondent had business relations. 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