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2021 (1) TMI 30 - HC - Indian LawsDishonor of Cheque - acquittal of the accused - Section 138 of the NI Act - main grounds urged in the respective appeals are that the trial Judge has committed an error in acquitting the accused and not properly appreciated the evidence in a proper perspective - HELD THAT:- Having perused the evidence available on record issuance of cheque is not in dispute and also notice has been given to the accused is also not in dispute. There is no dispute with regard to the fact that those notices are served on him and notice was served on him and he did not choose to give any reply. When the cheques are admitted and not given any reply, the Judgment of Rangappa's case is aptly applicable to the case on hand. No doubt, on perusal of the agreement, there is a recital to enforce the agreement for specific performance and also to claim the damages. But, in the case on hand, the claim of the complainant is that the contract did not take place between the parties. Hence, the accused has issued the cheque for return of the amount what has been received. The very conclusion of the Trial Court is that the complainant ought to have approached the Civil Court is erroneous and there is a clause in the agreement itself in the event of failure on the part of the first party to perform this agreement he shall refund the advance amount. The other reason given by the Trial Court is that the cheques are issued towards security is also not based on any record - First of all, the accused has not given any reply to the notice and also he did not dispute the issuance of notice. When such being the case, it is mandate on the part of the Trial Court to draw the presumption under Section 139 of the NI Act. Apart from that, the accused counsel himself suggested that the agreement was cancelled. When the same was cancelled, question of enforcing the agreement does not arise. Having perused the reasoning of the The Trial Court that the same is a civil remedy and cheques might have issued for security is erroneous and the very approach of the Trial Court is not in consonance with the provisions of Section 138 of the NI Act and so also not under Section 139 of the NI Act and not drawn presumption. The Trial judge has committed an error in paragraph No.10 in coming to the conclusion that the complainant has not produced documents to show that there was talks between himself and accused pertaining to calculation of damages after alleged breach of contract for which accused had issued the cheque - the Trial Judge proceeded to pass an acquittal order not based on the presumption as well as on the settled principles of law and the material available on record. In the case on hand, the accused has not rebutted the case of the complainant and there is no effective cross- examination and nothing is elicited from the mouth of P.W.1 with regard to the transaction and apart from that the accused himself has admitted the MOU between the complainant and accused. When such being the case, the Trial Judge ought not to have acquitted the accused - impugned Judgments of acquittal are hereby set aside - accused is convicted for the offence punishable under Section 138 of the NI Act - Appeal allowed.
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