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2018 (8) TMI 633 - HC - Indian LawsDishonor of Cheque - sufficient evidence to prove dishonor of cheque within statutory period. Held that:- In the present case, if the findings of the trial Court that the appellant had failed to prove dishonour of cheque and that the complaint could not be said to have been filed within limitation, are found to be erroneous, then the impugned order acquitting the respondent will have to be reversed. Since the trial Court found that the issue of legal debt or liability was proved by the respondent, the only question that arises in the present case is, as to whether it could be said that there was sufficient evidence to prove dishonour of cheque to conclude that the respondent had committed offence under Section 138 of the said Act - once such a memo or slip issued by the bank bearing its official mark concerning dishonour of cheque is placed on record by the complainant, the burden is clearly on the accused to disprove the fact of dishonour of cheque. When the basic fact of dishonour of cheque was not proved by the appellant and the burden was not discharged, offence under Section 138 of the said Act could not be said to have been committed by the respondent. Another important aspect of the present case is that when there is lack of evidence to show dishonour of cheque and consequently the date when the cheque was dishonoured, there is no reference point to ascertain as to whether the notice for demand of payment was issued by the appellant to the respondent within the period of 30 days of receipt of information from the bank regarding return of cheque as unpaid, as provided under proviso (b) to Section 138 of the said Act - This is the reason why the trial Court has held that the appellant failed to prove that she made demand for payment of amount within the statutory period, as the statutory period could not be computed in the facts of the present case. Analysis of the provisions of the said Act, particularly Sections 138, 142 and 146 thereof, shows that cognizance of the offence under Section 142 of the said Act could not have been taken by the Court in the present case because the basic fact of dishonour of cheque could not be proved by the appellant - the complaint in the present case was correctly rejected by the trial Court, thereby acquitting the respondent. Appeal allowed - decided in favor of appellant.
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