2021 (2) TMI 746 - KARNATAKA HIGH COURT - Indian Laws

Head Note / Extract:
Dishonor of Cheque - acquittal of the accused - section 138 of Negotiable Instrument Act 1881 - Whether the learned trial court has appreciated the evidence before the court in the light of the sound principles regarding appreciation of evidence in cases arising out of 'Cheque Bounce" under Negotiable Instrument Act 1881? - HELD THAT:- The question of issuing statutory demand notice under section 138 of N.I Act arose only after receipt of the dishonour memo by the Bank. Before receipt of the said intimation the complainant cannot send or could not send demand notice mentioning future date as a Bank intimation regarding dishonour of cheque. The endorsement by the postal authorities, the seal of the postal department on cover and postal receipts coupled with contents of the said notice clearly indicates that the notice was sent on 03-08-2009 but not on 03-07-2009. The trial court wrongly interpreted the said aspect and without considering the effect of general clause Act section 27 has come to a conclusion that, cause of action on notice dated: 03--08-2009 is barred by limitation and wrongly held that the accused is to be acquitted for want of cause of action and bar of limitation in filing complaint. The trial court shall frame proper point for consideration as to the legally enforceable debt or liability and also frame points for consideration as to presumption arising under section 118 and 139 of Negotiable Instrument Act and also to raise a point as to whether the accused has rebutted that presumption by preponderance of probabilities proves that his defense as probable. Without discussing the evidence of complainant or accused in a proper perspective simply stating there are latches in the complainant's case without stating what are those latches the finding is not tenable or legally sustainable. The trial court has committed a serious error in not appreciating the oral and documentary evidence. Except this limitation point no other points have been answered with reference to settled principle of law in appreciating evidence in case of Negotiable Instrument Act or Cheque Bounce case. Therefore, it is wise to set aside the order of the trial court and to remand the case for fresh disposal of case in accordance with law i.e., to hear both the parties and pass appropriate Judgment by giving reasons and findings both on evidence and the law except on the point of limitation which is admittedly within a period of limitation and held in favour of the complainant by this court. Appeal allowed.