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Indian Laws - Case Laws
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- 2021 (8) TMI 40 - KARNATAKA HIGH COURT
Dishonor of Cheque - rebuttal of presumption - debt claim is enforceable or not - onus shifts back on the complainant to lead further evidence and establish his case - Section 139 of the N.I. Act - HELD THAT:- Admittedly, except marking the cheque as well as the endorsement issued by the Bank, the office copy of legal notice sent to the accused and acknowledgment for having served the notice, the complainant has not chosen to produce any other documents. PW. 1 has been cross-examined with regard to the specific defence taken by the accused. In the present case, it has come on record that the Ganesh Bank of Kurundwad of whose cheque the complainant has relied upon is merged with the Federal Bank in the year 2005-06 and as such, the possibility of the cheque of the Ganesh Bank of Kurundwad being issued in the year 2010 is not acceptable. It....... + More
- 2021 (8) TMI 39 - KARNATAKA HIGH COURT
Dishonor of Cheque - rebuttal of presumption about the legally enforceable debt or not - cross-examination of witnesses - preponderence of probablities - Section 139 of the N.I. Act - HELD THAT:- By making that suggestion, the accused, once again, has re-confirmed of availing a loan from the complainant and also issuing a cheque to the complainant. Therefore, it is not a mere through presentation of the cheque and presumption under Section 139 of the N.I. Act, the inference of existence of a legally enforceable debt in favour of the complainant can be drawn, but, by leading cogent evidence also, the complainant has shown that, there existed a legally enforceable debt in his favour which was payable by the accused and in that regard, the cheque in question was given to him. The accused in the cross-examination of PW-1 has also produced a c....... + More
- 2021 (7) TMI 1207 - DELHI HIGH COURT
Smuggling - phensedyl codeine cough syrup 100 ml bottle - main argument raised by the Ld. counsel for the petitioner is that there is infirmity in drawing of the samples and the proper procedure has not been followed by the NCB (respondent) at the stage of drawing the samples - HELD THAT:- In the instant case, as per the prosecution 200 bottles of phensedyl codeine cough syrup were recovered. The seized bottles were of the same size and were having batch numbers on them i.e. batch No. PHB7217 & PHB7236. Therefore, in these circumstances, since these were cough syrup bottles which are ordinarily available in the market for treating cold and cough, cannot be said to have different concentration of medicines as they are prepared under the same formulation as per their batch numbers. Therefore, there is no infirmity in the manner in which....... + More
- 2021 (7) TMI 1202 - GUJARAT HIGH COURT
Dishonor of Cheque - Fraudulent transaction or not - existing debt or advance payment - presumption available under Section 139 of the N.I.Act - no reply to the notice has been given - whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability? - Section 138 of the Negotiable Instruments Act, 1881. HELD THAT:- While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court. In M/S. BALAJI SEAFOODS EXPORTS VERSUS MAC INDUSTRIES LTD. [1998 (10) TMI 528 - MADRAS HIGH COURT], the Madras High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is,....... + More
- 2021 (7) TMI 1156 - MADHYA PRADESH HIGH COURT
Termination of dealership - breach of Clause 45 (d) of dealership agreement - Co- operative Society appointed as dealer, involved in a criminal offence or not - petitioner was convicted under Section 138 of Negotiable Instruments Act, 1881, for dishonor of cheque - heinous case or case involving moral turpitude or otherwise? - HELD THAT:- Apex Court in the case of P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] has reiterated that proceedings under Negotiable Instruments Act are basically civil in nature having criminal colour. Apex Court has defined the proceedings aptly as "civil sheep in a criminal wolf's clothing" and has reiterated the law laid down - Similarly, in M/S. METERS AND INSTRUMENTS PRIVATE LIMITED & ANR. VERSUS KANCHAN MEHTA [2017 (10) TMI 218 - SUPREME C....... + More
- 2021 (7) TMI 1154 - GUJARAT HIGH COURT
Dishonor of Cheque - Trial Court awarded punishment in the form of imprisonment for the said offence - dispute is amicably settled with the respondent no.2-complainant, with regard to the offence, after the order of conviction is passed - complainant filed an affidavit interalia stating that if the order of conviction passed against the applicants is quashed and set aside, he has no objection - compounding of offences - HELD THAT:- This Court, in the case of Khokhar Iliyas Bismilla Khan Vs. State of Gujarat & Anr. [2021 (6) TMI 868 - GUJARAT HIGH COURT] , had an occasion to deal with a similar issue which is involved in the present matter, where it was held that Taking into account the fact that the parties have settled the dispute amicably, in view of this court the compounding of the offence is required to be permitted. Thus, when t....... + More
- 2021 (7) TMI 1149 - MADRAS HIGH COURT
Dishonor of Cheque - chque was signed by the Husband (who was not the joint holder) - allegation is that ingredients as contemplated in Section 138 of the Negotiable Instruments Act having not been fulfilled - debt or liability on the part of the drawer of the cheque or not - Section 138 of the Negotiable Instruments Act - HELD THAT:- It is evident that to take action against non-payment of any cheque amount due to its return by the bank as unpaid, there should exist any debt or liability on the part of the drawer of the cheque and the recipient of the cheque. In the present case, it is the admitted stand of the parties that there was no debt or liability on the part of the petitioner to the complainant. Therefore, mere issuance of cheque belonging to the petitioner would not suffice to attract Section 138 of the Negotiable Instruments Ac....... + More
- 2021 (7) TMI 1041 - MADRAS HIGH COURT
Dishonor of Cheque - non-CTS-2010 cheque - valid cheque or not - scope of four corners of Section 138 of the Negotiable Instruments Act - Scope of circular issued by Reserve Bank of India dated 18.3.13 - time limitation - HELD THAT:- The circular issued by Reserve Bank of India dated 18.3.13, which has been pressed into service to put forth the contention that the non-CTS-2010 cheque is an invalid cheque, however, clause (c) of the circular issued by Reserve Bank of India provides that all residual non-CTS-2010 cheques with customers will continue to be valid and accepted in clearing houses (including the Cheque Truncation System (CTS) Centres) for another four months up to July 31, 2013, subject to a review in June, 2013. From the said clause it is evident that validity is given till 31.7.2013, which is subject to review. However, no mat....... + More
- 2021 (7) TMI 1040 - MADRAS HIGH COURT
Dishonor of Cheque - suit barred by limitation or not - denial of execution of pronote - suit is filed only after 8 years from the date of execution of the pronote - time limitation in case post dated cheque issued - HELD THAT:- The cheques dated 28.04.2008 and 28.04.2009 were not presented for collection and both cheques had lost their validity. Insofar as the cheque dated 28.04.2011 is concerned, the complaint was lodged and referred before Lok Adalat. The last payment made by the defendant on 21.09.2012 and it was duly recorded and the complaint was closed by an order dated 21.09.2012 which was marked as Ex. A8 - Insofar as the receipt of ₹ 10,00,000/-, the execution of pronote and the issuance of cheques are concerned, the defendant, during his cross examination, categorically admitted that the plaintiff entrusted a sum of ͅ....... + More
- 2021 (7) TMI 1035 - KARNATAKA HIGH COURT
Dishonor of Cheque - condonation of delay in filing the complaint - trial court failed to grant extension, inspite of being allowed by suo moto petition - HELD THAT:- Even though the trial Court referred the averments made in the complaint, the sworn statement and documents marked on behalf of the complainant, it has not given its consideration to the dates of events which are mentioned above before condoning the delay in presenting the complaint. It is settled position of law that there must be application of mind before taking cognizance of the offence by the Court when there are several dates of events as mentioned - The impugned order does not speak that the Court has taken the said events into consideration before proceeding to pass the impugned order. The matter remanded for fresh consideration by the trial Court keeping in mind the....... + More
- 2021 (7) TMI 956 - CALCUTTA HIGH COURT
Dishonor of Cheque - supply of information about the location of the original case records - it was submitted that while the impugned order was passed, the facts with regard to the trial of the case under Section 138 of the NI Act was not taken into consideration by the writ Court as the complaint was initially instituted before the learned Chief Judicial Magistrate, Paschim Medinipur - HELD THAT:- The order substantially has been passed in favour of the petitioner/appellant to take appropriate steps with regard to the case records pending with the learned Judicial Magistrate, Alipore as it appears that the case records is pending for inquiry and trial before the learned Judicial Magistrate, 2nd Court at Alipore. The report of the learned Chief Judicial Magistrate was communicated to the registry through District Judge, South 24 Parganas ....... + More
- 2021 (7) TMI 847 - JHARKHAND HIGH COURT
Dishonor of Cheque - service of legal notice - presentation of cheque second time - bouncing of cheques on the ground that the same were not-acceptable to the bank on account of its being non- MICR - applicability of prosecution under Section 138 of Negotiable Instruments Act, 1881 - HELD THAT:- Admittedly the second bouncing of cheques was not on account of any insufficiency of fund in the bank, nor the same was on account of any act of stop payment etc. from the side of the petitioner. Thus, by the time the second presentation of cheques was made in the bank, the same had become not acceptable by the bank on account of being non-MICR cheques. Accordingly, the petitioner had no role to play in return of cheques upon second presentation, but the same were not acceptable by the bank itself on account of technical reasons. As per proviso (a....... + More
- 2021 (7) TMI 845 - JHARKHAND HIGH COURT
Dishonor of Cheque - it is claimed that cheque issued by way of security and not against any legally payable debt - evidences produced or not - burden to prove - principles of natural justice - HELD THAT:- Admittedly, the petitioner did not even lead any defence evidence in spite of grant of opportunity by the learned court below and none of the witnesses whose name appeared as witnesses on Exhibit-A deposed before the court to explain the circumstances under which it was issued. On the other hand, the P.W. 2 is the eye-witness of the entire transaction and has explained the circumstances under which the cheque was issued by the petitioner to the complainant and has fully supported the prosecution case - From the records of the case, it appears that the P.W. 2 clearly deposed that cash of ₹ 1,00,000/- was handed over to the petition....... + More
- 2021 (7) TMI 837 - RAJASTHAN HIGH COURT
Maintainability of this criminal miscellaneous petition - exercise of inherent jurisdiction by this Court under Section 482 Cr.P.C. - Matter compromised between parties - HELD THAT:- It is well established and recognised practice that against appellate order confirming the judgment of conviction, the revision petition lies under Section 397 read with Section 401 Cr.P.C. - this Court will not entertain a petition under Section 482 Cr.P.C. where the petitioner has other remedy available under the Code except under exceptional circumstances. After considering earlier judgments of the Hon'ble Supreme Court of India in the case of Madhu Limaye vs. State of Maharashtra [1977 (10) TMI 111 - SUPREME COURT], the Court proceeded to hold that there can be no total ban on the exercise of extraordinary jurisdiction conferred on a High Court under ....... + More
- 2021 (7) TMI 821 - KARNATAKA HIGH COURT
Dishonor of Cheque - service of notice - legally enforceable debt or not - rebuttal of presumption - complainant claims to have sent the legal notice to the accused, but the same was not served upon petitioner - complainant's main grievance is against the Trust - the accused alone was alleged to be the only active Trustee in the said Trust. Service of notice - HELD THAT:- The address of the accused shown in her vakalath in the Trial Court, the cause title in the complaint filed by the complainant before the said Court, and in the memorandum of the criminal appeal before the Sessions Judge's Court and also in the present Criminal Revision Petition before this Court are all the same address, as such, it is established that the complainant issued the notice to the correct address of the accused. The said notice was also tendered at t....... + More
- 2021 (7) TMI 819 - KARNATAKA HIGH COURT
Dishonor of Cheque - Complaint was dismissed hold that, complainant failed to prove the guilt of the accused beyond reasonable doubt - rebuttal of presumption - cheque got executed by exercising force - quantum of amount lent also in dispute - accused has not chosen to step into the witness box to depose regarding his contention - HELD THAT:- It is the settled proposition of law that when the complainant is successful in proving issuance of cheque and its dishonour, unless the accused repays the cheque amount, the offence under Section 138 of N.I. Act is complete and the presumption under Section 139 of N.I. Act arises. In Rangappa v. Sri. Mohan [2010 (5) TMI 391 - SUPREME COURT], the Full Bench of the Hon'ble Apex Court considered its earlier verdict in Krishna Janardhan Bhat v. Dattatraya G. Hegde [2008 (1) TMI 827 - SUPREME COURT] ....... + More
- 2021 (7) TMI 818 - ALLAHABAD HIGH COURT
Dishonor of Cheque - issuance of non-bailable warrant - validity of proceedings under Section 482 Cr.P.C. - HELD THAT:- After coming to know that the non-bailable warrant has been issued this is a clear device of challenging the entire proceedings under Section 482 Cr.P.C. It is not known if the police has already arrested the accused as the warrants were issued long back before one year. The summoning order is dated 29.04.2019 which means that for a period of two years the respondents have not appeared before the learned Magistrate. Prima facie ingredients of the offence are made out from the papers on record. On the touchstone of the decision of the Apex Court and in a recent decision of High Court of Gujarat in case of A. H. Patel vs. State of Gujarat reported in [2013 (3) TMI 861 - GUJARAT HIGH COURT] as the facts are similar to this ....... + More
- 2021 (7) TMI 739 - KARNATAKA HIGH COURT
Dishonor of Cheque - funds insufficient - presumption about the existence of legally enforceable debt - rebuttal presumption or not - preponderance of probability - material contradictions in the case of the complainant - HELD THAT:- The complainant in his complaint, as well in his examination-in-chief as PW-1 has stated that the loan was given by him to the accused in the month of July 2012. He has not given any specific day of the month as to the date on which the alleged loan was given. The month is also stated to be July of the year 2012. However, the very same witness in his cross-examination has stated that he lent the money to the accused on 06.08.2012. That means, the complainant was clearly aware the exact date on which the loan is said to have been given by him to the accused. However, for the reasons best known to him, neither ....... + More
- 2021 (7) TMI 738 - KARNATAKA HIGH COURT
Dishonor of Cheque - Filing a case for Suit for recovery of money after initiating action u/s 138 of N.I.Act - Validity of FIR registered - Allegation is that the discount as promised by seller were not provided - matter of contract to be proved by the second respondent for recovering the amount said to be due to him - HELD THAT:- If the FIR registered against the petitioners and two others is read, it appears that the second respondent wanted to purchase laptops from the first petitioner’s business concern and there is no dispute with regard to this. The petitioners dispute offering of discount to the extent of 15 to 18% and claim to have supplied the entire quantity of laptops which is again disputed by the second respondent. But what is important to be noted here is that on 16.11.2018 itself, the second petitioner lodged an FIR w....... + More
- 2021 (7) TMI 737 - CALCUTTA HIGH COURT
Dishonor of Cheque - legality of signature on a money receipt which forms the basis of consideration behind the cheque in question - refusal to to send the document in question to a handwriting expert quite sometime ago - HELD THAT:- The learned revisional Court seems to have erred in holding that the application for seeking the handwriting expert's opinion was filed after the examination of the accused under Section 313 of the Code. In any event, even after examination of the accused under Section 313 of the Code, an accused can seek the opinion of a handwriting expert - If the purported money receipt is not sent to an expert for comparison, it would amount to denying a fair trial to the accused. The application of the petitioners shall appropriately be allowed to send the money receipt to a handwriting expert for comparing the signa....... + More
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