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2021 (10) TMI 760 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - condition precedent for constituting an offence under Section 138 of N.I. Act has been satisfied or not - service of legal notice - HELD THAT:- From the case records, it appears that the prosecution had exhibited the cheques and also proved the postal receipt and successfully proved that the cheques were issued by the petitioner, which had bounced due to insufficient funds. Service of legal notice - HELD THAT:- Neither any date of dispatch of the legal notice has been mentioned in the evidence, nor the legal notice has been exhibited, much less, any evidence or finding regarding service of legal notice/deemed service of legal notice is on record. This court is of the considered view that mere bouncing of the cheque coupled with a further statement that legal notice was issued but in-spite of its service the amount was not paid are not enough to constitute an offence under section 138 of N.I. Act. The time lines as prescribed under the N.I. Act which has been fully explained by the Hon'ble Supreme Court are essential ingredients to be proved for convicting the accused under section 138 of N.I. Act. Further, in absence of the legal notice brought on record by way of exhibit, it certainly cannot be assumed that the document which was sent through registered post was the legal notice pursuant to bouncing of the cheques - Mere bouncing of cheque signed by the accused does not constitute an offence unless other ingredients of the offence under section 138 of N.I. Act are also proved. In the aforesaid facts and such circumstances of this case, the basic ingredient to constitute an offence under Section 138 of N.I. Act have not been proved by the prosecution. There is no doubt that there is presumption in connection with a cheque in favour of the holder of the cheque under Section 139 of N.I. Act, but that presumption by itself is not sufficient to constitute an offence under Section 138 of N.I. Act, unless the other ingredients have been proved - this court is of the considered view that the conviction of the petitioner for offence under section 138 of N.I. Act is perverse and suffers from material irregularity which calls for interference in revisional jurisdiction to meet the ends of justice. Revision application is allowed.
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