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2017 (10) TMI 665 - HC - Indian LawsConviction for the offence u/s 138 of the Negotiable Instruments Act - nature of offence - Held that:- The notice intimated to the petitioner about the dishonour of the cheques and his duty to discharge the loan which was taken by him from the complainant. The issuance of cheques by the petitioner in favour of the opposite party no. 2 is an admitted fact. Therefore, it was a burden upon the petitioner to prove that the cheques were misused or that he had paid the amount. The petitioner failed to prove either and, therefore, presumption has to be drawn against the petitioner. The witnesses have categorically stated about the taking of friendly loan from the complainant by the petitioner for which five cheques were given and which got dishonoured due to insufficiency of founds. On such admitted facts the issue raised by the petitioner with respect to instituting a separate case appears to be hyper technical and a ploy to thwart the complainant from getting the legitimate claim. The complainant has been able to prove his case beyond all reasonable doubts and, therefore, the learned trial court had rightly convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act which was subsequently affirmed in appeal. There being no reasons to conclude otherwise the judgment of conviction passed by the learned trial court and upheld by the learned appellate court is, hereby, sustained. So far as the sentence imposed upon the petitioner is concerned, it seems that he has remained in custody for more than six months. Therefore, there is no question of reduction in the sentence of imprisonment imposed upon the petitioner.
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