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2020 (1) TMI 383 - HC - Indian LawsDishonor of cheque - Section 138 of the Negotiable Instruments Act - the cheques, which were dishonoured, were given by way of security - suppression of fact by the complainant - HELD THAT:- This Court finds that long standing business transaction and inability of refunding a loan has been given a color of criminal offence of cheating punishable under Section 420 of the Indian Penal Code. A breach of trust with mens rea gives rise to a criminal prosecution. In this case when I go through the evidence before charge of the complainant and the documents of the complainant, I find that there were long standing business transactions between the parties. Since 2011 money was advanced by the complainant and his family members to the accused and the complainant witness admits that money was also transferred from the account of the accused to the account of daughter of the complainant. From the evidence, I find that there is no material to suggest existence of any mens rea. Thus, this case becomes a case of simplicitor case of non-refunding of loan, which cannot be a basis for initiating criminal proceeding. It is the documents of the complainant, which show that the cheques were given by way of security. Even if I do not believe the statement of the accused, the documents of the complainant cannot be brushed aside - Since the cheques were given by way of security, which is evident from the complainant’s documents (though this fact has also been suppressed in the complaint petition), I find that Section 138 of the Negotiable Instruments Act is also not attracted in this case. Application allowed.
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