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2022 (1) TMI 611 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - legally enforceable debt or not - acquittal of the accused - sufficiency of service of notice or not - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- In the instant case, the postal receipt has been filed by the appellant and information received under the Right to Information Act, 2005 has also been filed by the appellant relating to postal receipts, by which the Postal Department had informed that the item had been delivered on the respondent. In his affidavit given in the examination-in-chief, the appellant has deposed about these facts. It categorically establishes that, in fact, service had been sufficient on the respondent. There is no doubt about it. While referring to the complaint and the statement of the appellant, learned counsel for the respondent submits that nowhere, the appellant had revealed the date, time when the loan was taken by the respondent and place, where the loan was taken by him. Based on it, it is submitted that non-disclosure of date, time and place where the loan taken infers that there was no legally enforceable debt or other liability - This Court is of the view that this argument does not merit acceptance. The explanation to Section 138 of the Act, clarifies the words “debts or other liability” as used in Section 138 of the Act and according to it, the “debts and other liability” means legally enforceable debts or other liability. Even if particular date, time and place is not mentioned in the complaint or at any place, it does not mean that the respondent was not under any debt or legally enforceable liability. The offences under Section 138 of the Act, in fact, though is criminal in nature, but, it has an element of enforcing negotiable instruments to ensure free and fair transactions. It has an element of civil liability, as well. Admittedly, both the parties had their business dealings. It is also admitted that, in fact, in the past, the respondent had paid certain amounts to the appellant - As stated, in the instant case, parties were in business dealing. They were dealing in the property. They have transactions in the past, as well. Therefore, this Court is of the view that the interest of justice would be served, if a fine of ₹ 6 Lacs is imposed on the respondent. Out of the fine, ₹ 4 Lacs should be paid to the appellant as compensation. In default of payment of fine, the respondent shall undergo simple imprisonment for a period of six months. The respondent Sohan Lal Kala is convicted under Section 138 of the Act. A fine of ₹ 6 Lacs is imposed on the respondent Sohan Lal Kala under Section 138 of the Act. In default of payment of fine, the respondent shall undergo simple imprisonment for a period of six months. Out of the fine deposited by or recovered from the respondent, ₹ 4 Lacs shall be paid to the appellant as compensation - appeal allowed - decided in favor of appellant.
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