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2017 (8) TMI 1013 - HC - Indian LawsComplaint maintainable under Section 138 of the NI Act - non issuance of statutory notice - Held that:- In the case in hand, admittedly, there was a notice on 21.11.2007 and the said notice was received by the responsible sub-staff or assistant of the petitioner's house/family on 22.11.2007. Therefore, absolutely there is no ground to show that there was no notice statutorily issued by the respondent and as such, notice was not served on the accused persons including the petitioner. In the matter of cheque dishonoured cases under Section 138 of the NI Act, the law has marched well and in fact, it has been settled. The presumption under Section 139 of the Act, is always in favour of the complainant. Though it is a rebuttable presumption, the rebuttal has to come from the accused side, and the same must be an acceptable rebuttal. The petitioner/accused did not bring any rebuttable presumption as the presumption has already been in favour of the complainant and against the accused within the meaning of Section 138/139 of the NI Act. Therefore, this Court finds that there is no ground to interfere with the order of the trial Court, as has been confirmed by the order of the First Appellate Court. Quantum of sentence is concerned, the Court below has sentenced the accused to undergo Simple Imprisonment for six months and had directed the petitioner/accused to pay the cheque amount as compensation in terms of Section 255(2) of the Code of Criminal Procedure. The petitioner is a woman, considering the said factor, though the Court is empowered to punish the accused under Section 138 of the NI Act, to an extent of two years maximum punishment, this Court is of the view that the punishment given by the Trial Court as confirmed by the First Appellate Court, can be modified to the extent that the petitioner/accused is convicted and sentenced to undergo Simple Imprisonment for a period of three months. Quantum of compensation is concerned, since the loan amount was ₹ 10 lakhs and as a part payment, the cheque was issued by the petitioner for a sum of ₹ 9,25,000/- only, this Court feels that the said compensation, equal to the cheque amount is not on the higher side and therefore, such compensation does not warrant any interference.
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