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2021 (8) TMI 1283 - HC - Indian LawsDishonor of cheque - insufficient funds - Termination of agreement - appellant submits that as the respondent had been convicted for an offence under Section 138 of the Negotiable Instruments Act, the appellant was well within its right to terminate the dealership of the respondent - HELD THAT:- In criminal law, the offences are of two kinds: Offences may be mala in se and/or malum prohibitum. Offences mala in se are those offences which are repugnant to human conscience and are offences involving moral turpitude. Therefore, acts such as murder, theft, rape, cheating etc., are offences mala in se. Per contra, the offences which are malum prohibitum are those acts, though not morally repugnant, are made offences by an act of legislature as in the case of Section 138 under the Negotiable Instruments Act. It is not necessary that an act which is an offence malum prohibitum in India be an offence in any other country. Clause 45 (d) is wide and open ended and does not define a criminal offence for which there can be cancellation of dealership by its invocation. The said clause cannot be interpreted pedantically to include each and every act or omission which may constitute an offence under the jus scriptum. In an offence under Section 138 of the Negotiable Instruments Act, knowledge that the accused did not have sufficient balance in his bank account while issuing the cheque is preponderant on the part of the accused. That may be so, but the same does not make the act morally repugnant. The issue is no longer res integra as the Supreme Court in P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] has held that the act constituting the offence u/s. 138 of the NI Act is of a civil nature with a criminal liability. Invocation of clause 45(d) can only be in cases involving moral turpitude or those offences where the company itself is a victim and the licensee the perpetrator of the offence. Therefore, impugned order passed by the learned single Judge is just and proper and the present appeal is without substance. Appeal dismissed.
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