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2021 (11) TMI 163 - HC - Indian LawsDishonor of cheques - service of legal notice - legally enforceable debt or not - rebuttal of presumption or not - Section 139 of the Negotiable Instruments Act - HELD THAT:- It appears that none of the witnesses has stated as to what happened to the legal notice and as to whether the same was served or not. A defence witness was also produced from the side of the accused indicating that he had intimated in the police station regarding loss of cheques and the defence evidence was also considered by the learned trial court indicating that the information to police (Exhibit-A with objection) did not even state the number of cheques and their numbers which were lost and accordingly, the defence evidence was rejected by the learned trial court. The learned trial court, while convicting the petitioner, held that once a cheque is signed and issued, there is presumption that the same was issued against a debt or liability. However, the learned trial court did not record any specific finding with regard to compliance of the other preconditions to constitute an offence under Section 138 of Negotiable Instruments Act for the purposes of even filing a criminal case under the said section. This Court is of the considered view that the complaint filed by the complainant was premature as the cause of action for filing the complaint case under Section 138 of Negotiable Instruments Act was not crystalized on the date of filing of the complaint on 11.02.2003 and accordingly, the condition precedent for filing the complaint case under Section 138 of Negotiable Instruments Act, 1881 having not been satisfied, the conviction and sentence of the petitioner cannot be sustained in the eyes of law. The present criminal revision petition is allowed.
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