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2017 (4) TMI 976 - HC - Indian LawsCharge under Section 138 Negotiable Instruments Act - Held that:- Both the complainant and the accused were known to each other being colleagues. It, however, fell into grave error to observe that the respondent was able to rebut the presumption and the burden was heavily upon the appellant to prove its case beyond reasonable doubt. There was no dispute raised by the appellant regarding the payments of ₹ 3.6 lacs and other payments amounting to ₹ 50,000/-. It was explained by the appellant that ₹ 3.6 lacs paid prior to the execution of the document (Ex.DW-1/P1) were towards another transaction and ₹ 50,000/- were out of the loan amount ₹ 5 lacs. The Trial Court failed to record any finding if there was any payment by the respondent after the issuance of the admitted cheque (Ex.CW-1/1) to the appellant. The respondent did not explain as to under what situation and circumstances the cheque on presentation was dishonoured. For the forgoing reasons, respondent’s acquittal under Section 138 Negotiable Instruments Act is unsustainable and set aside. The appeal is allowed and the respondent is convicted under Section 138 Negotiable Instruments Act. Section 138 provides that a person guilty for the offence be punished with imprisonment with term which may extend to two years or with fine which may extend to twice the amount of cheque or with both. In the instant case as observed above, in civil proceedings, the respondent has made certain payments. Having regard to the facts and circumstances of the case, the respondent is sentenced to undergo SI for one month. The respondent shall surrender before the Trial Court to serve the sentence on 24.04.2017 failing which, coercive process shall be issued against him.
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