Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2020 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (2) TMI 961 - HC - Indian LawsDishonor of cheque - section 138 of NI Act - Breach of Section 269SS of the Act, 1961 - respondent had send a notice which was presumed served upon the present applicant but payment was not made to the respondent - HELD THAT:- Breach of Section 269SS of the Act, 1961 provides that the penalty to which the person would be subjected to under Section 271D of the Act, 1961 - Section 271D does not provide that such a transaction would be null and void. There is no provision under the Act, 1881 which would vitiate the entire loan transaction for dealing with cash amount above ₹20,000/-. The culpability of offence under Section 138 of the Act, 1881 will not freeze for the reason of violation of Section 269SS of the Act, 1961 and nothing prevents the operation of the statutory presumption under Section 118 and Section 139 of the Act, 1881. The applicant could not show any statutory provisions under the Act, 1961 or any other law which stipulates that a loan transaction which is in violation of Section 269SS of the Act, 1961, would be void. Violation of Section 269SS of the Act, 1961 would not render the loan as not recoverable through a legal process. The payer of the money in cash in violation of Section 269SS of the Act, 1961 would, therefore, be entitled to enforce an agreement of advancement of money in cash beyond ₹20,000/-. Under Section 139 of the Act, 1881, there is a presumption in favour of the holder. Section 139 of the Act, 1881, stipulates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. It is also well settled that at the time of the consideration of the case for summoning, the merit of the case cannot be tested - In the case at hand, the respondent-complainant has proved prima facie the basic ingredients of the offence under Section 138 of the Act, 1881. It is wholly impermissible for this Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. The Court would not also examine the genuineness of the allegations made in the complaint, since the Court does not function as a Court of Appeal or Revision while exercising its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973. The application has no force - The application, filed under Section 482 of the Code of Criminal Procedure, 1973, is dismissed.
|