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2021 (3) TMI 1228 - HC - Indian LawsDishonor of Cheque - validity of demand notice - full disclosure of the details of the transaction in the notice of demand not made - what constitutes valid consideration - insufficiency of funds - acquittal of accused - HELD THAT:- No particular form has been prescribed under the Act with respect to a notice u/s. 138(b) of the Act except that the payee or holder in due course should make a demand for the payment of the amount of money within 30 days from the receipt of intimation from the bank regarding the return of the cheque. The court cannot legislate by prescribing a particular form and cannot require that the nature of the transaction, leading to the issuance of cheque, be disclosed in the notice when the statute does not provide for it. It is also to be noted in this context that the offence u/s. 138 of the Act is an offence which would be attracted on the ingredients referred being satisfied. Facts, circumstances and evidence adduced probabilise the version of the defence that in the year 1993 the accused issued cheque as a financial assistance. There are no hesitation to find that though execution of P1 cheque is proved the accused has successfully rebutted the presumption and it has been established that there was no valid consideration for issuance of the cheque. The accused having succeeded in rebutting the presumption, the burden shifts to the complainant to prove the consideration. In the case at hand apart from producing Ext. P1 cheque, complainant did not produce any document or other evidence to prove consideration. Source of fund though alleged to be his nephew and brother in law of his wife, they were not examined. There is no material produced to prove the alleged business transaction between himself and the accused in Riyad or the business of accused for which he asserted to have advanced loan - this is a case in which the accused rebutted the presumption available under Section 139 of the Act and the complainant miserably failed to prove the consideration for Ext. P1 cheque. The learned Addl. Sessions Judge rightly acquitted the accused. Non disclosure of the nature of the transaction between the parties in the notice is fatal and that the suppression of the particulars of the transaction in the complaint is sufficient to order acquittal is held to be not good law. Appeal dismissed.
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