Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2021 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (3) TMI 907 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or not - cheques were obtained two years prior to the date of presentation - HELD THAT:- The three ingredients to attract the offence under Section 138 of the Negotiable Instruments Act are that there was a legally enforceable debt, that the cheque was drawn from the account of the banker for discharge, in whole or part of any debt or liability which presupposes a legally enforceable debt and that the cheques so issued had been returned due to insufficiency of funds. In order to draw the presumption available in favour of the appellant under Section 118 and 139 of the Negotiable Instruments Act, it must be admitted or proved that the cheques were issued by the first respondent in discharge of a legally enforceable debt or liability. Here, the first respondent has not admitted the allegations. Whether the appellant could prove that Ext.P1 series were issued in discharge of a duly enforceable debt or liability? - HELD THAT:- The materials brought out in evidence are sufficient to give an answer in the negative. As noticed earlier, the appellant has admitted that the cheques were issued two years before the date of presentation - Secondly, through the Ext.D1 judgment in S.T.No. 288/2007, the learned Magistrate could very much expose the hollowness of the claims of the appellant. That case related to issuance of cheque Nos. 428897 dated 23.08.2006 and 428896 dated 20.08.2006, both for ₹ 44,200/-. Those cheques were shown dishonored on 12.09.2006. Thus the learned Magistrate has rightly noticed that it is improbable that after dishonoring two such cheques on 12.09.2006, the appellant had accepted, at least two cheques dated 14.09.2006 and 22.09.2006 in Ext. P1 series. Here it has come out in clear terms that the cheques were handed over two years prior to the date of presentation. In other words, it was not presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier. This aspect cuts the very root of the case of the appellant - Though the learned counsel made a faint prayer for making a remand, in the circumstances that would be an idle exercise. The appellant could not prove that the subject cheques were issued in discharge of a duly enforceable debt or liability. There is no reason to interfere with the finding in question. This appeal is only to be dismissed. Appeal dismissed.
|