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2016 (9) TMI 766 - HC - Indian LawsDishonoring of cheque - Committing an offence under Section 138 of the Negotiable Instruments Act, 1881 - Held that:-When the cheque was bounced, on account of closure of account by the petitioner, the respondent had served a legal notice upon him before filing the present complaint, but the petitioner did not reply to the said notice. In order to invoke Section 138 of the act, the three ingredients which need to be fulfilled are (i) that there is a legal enforceable debt; (ii) that the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt and (iii) that the cheque so issued had been returned due to insufficiency of funds. The proviso appended to the said Section provides for compliance of legal requirements before a complaint can be acted upon by the Court of law. Section 138 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. Rather, it merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or liability. Thus, ingredients of Section 138 of the Act have duly been met, as the accused was unable to rebut the statutory presumption under Section 139 of the Act. Even otherwise, the petitioner has himself suffered a statement before the lower Appellate Court that a compromise has been effected between the petitioner, according to which, the petitioner agreed to make payment of ₹ 1,30,000/- on that date itself i.e. 16.5.2015 and to make the remaining payment within on month thereafter. But the petitioner did not honour the said statement. The plea of the petitioner that he is a patient of multiple substance abuse disorder with psychotic disorder with recent memory and judgment, is of no help to him, when the same was never agitated before the Courts below. This plea is altogether a new plea and the same is not admissible at this stage. Once the petitioner has made a statement that he will make the payment within a specified period and has failed to honour the same, he is estopped from raising altogether a new plea at this stage.
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