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2021 (2) TMI 113 - HC - Indian LawsDishonor of Cheque - It is contended by petitioners' counsel that the complainant had filed the private complaint against the accused after following the requisite conditions of the N.I.Act, but the same came to be dismissed for non-prosecution - HELD THAT:- The Negotiable Instruments Act is a special enactment which delivers social justice as well criminal justice. The cause of action arise only after return of the instrument from the Bank as where the cheque was presented. Even pre-cognizance has been taken on filing of the complaint by the complainant by following requisite condition under Section 138 of the N.I.Act and thereafter, if found that there is a prima-facie case to proceed, the Court has to apply it's mind as under Section 142 of N.I.Act for taking cognizance under the aforesaid provision. But the cognizance arise in a proceeding under Section 138 of the N.I.Act, it is pre-cognizance and post cognizance. But post cognizance it is only after initiation of criminal prosecution against the accused by perusal of the material facilitated by the complainant and thereafter to proceed in further to prove the guilt of the accused by producing worthwhile evidence which may end in conviction or acquittal. But it is the domain vested with the trial Court. The trial Court has to give credentiality to Section 138 of the N.I.Act which is a special enactment and so also, give credentiality to Section 3 of the Indian Evidence Act as wherein the Doctrine of Preponderance of Probability even in civil in nature under Section 138 of the N.I.Act. But after post-cognizance the complainant has to prove the guilt of the accused by facilitating worthwhile evidence, then there shall be Doctrine of beyond reasonable doubt if the case ends in conviction and if any doubt arise, then the case ends in acquittal, it is based upon the evidence facilitated by the complainant to establish his case and similarly the witnesses have to be subjected to cross-examination on the part of the defense. Even as under Section 139 of the N.I.Act, there is a presumptive value neither the evidence of the complainant or defense and the proceedings has to be taken in terms of the prosecution. In the instant case, the petitioner/complainant being a gravamen of the charge, has challenged the order of for dismissal of his complaint for non-prosecution by urging various grounds. Therefore, it is deemed proper for intervention of the impugned order, if not, certainly the complainant/petitioner would be the sufferer. Petition allowed.
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