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2021 (1) TMI 438 - HC - Indian LawsDishonor of Cheque - funds insufficient - post dated cheque - legally enforceable debt or not - acquittal of the accused - the accused in this case has contended that cheque in question was a post dated cheque issued for security purposes only - Whether the complainant has made out all the ingredients of Sec.138 of N.I.Act to prove the guilt of the accused person? - HELD THAT:- accused admitted his signature on cheque and its issuance to complainant. Consequently presumption under Section 118 and 139 of N.I. Act would be available to complainant - In this case, accused has not led his evidence. The reasons assigned by the trial Court that complainant failed to prove the particulars of seizure of vehicle of accused, its sale to third party, the amount received from such sale coupled with the contention that cheque issued was a post dated cheque given for security purpose only cast a serious doubt about the complainant's case, would be contrary to the law under Negotiable Instruments Act regarding presumptions available to the complainant. The trial Court taking judicial notice of the fact that farmers borrowing loan from financials would put their signatures wherever indicated by the financiers is also perverse and not based on any evidence - liability of accused continues even after repossession and sale of vehicle to third parties, for any balance due after adjusting amount recovered from sale. The complainant has established all the ingredients of offence under Section 138 and as the reason assigned by the trial Court for acquittal is held to be perverse, the appeal is allowed, the impugned order of acquittal is set aside. The accused is held guilty of offence punishable under Section 138 of the N.I. Act. It is felt just and proper to impose a sentence of fine instead of imprisonment as the offence is in the nature of a civil wrong and the purpose of Section 138 is compensatory and not punitive. The accused is hereby sentenced to pay a fine of ₹ 13,74,000/- i.e. twice the amount of the cheque and in default of payment of fine, to undergo simple imprisonment for a period of fourteen months.
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