Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (8) TMI 821 - HC - Indian LawsDishonor of Cheque - part amount recovered by complainant prior to the issuance of cheque by the accused, a fresh cheque should be issued - rebuttal of presumption - acquittal of the accused - HELD THAT:- Once the issuance of the cheque and the signature thereupon is admitted, the presumption under Section 139 of the N.I. Act, is clearly attracted, and therefore, the burden, would shift upon the accused to show that either by way of cross-examination or by leading defence evidence, the presumption stood rebutted. In the instant matter admittedly no defence evidence has been led. The evidence of the complainant therefore assumes importance. The complainant, in his evidence has proved a document namely Exh. 42 (page 94) dated 15.06.2011 which is a communication issued by the accused, in favour of the complainant. A perusal of this communication, would indicate, that the accused in clear and specific terms, has admitted the relationship as indicated in the complaint - the existence of a legal liability for which the cheque in question was issued, as a result whereof the applicability of the presumption under Section 139 of the N.I. Act, stood justified. In case any part amounts are received post the dishonor, but prior to the notice of demand, the course contemplated by Section 56 of the N.I. Act, not being available, the prudent course would be to secure a fresh negotiable instrument for the balance and present it for realisation. However, many a times that does not happen, leaving the payee/holder of the cheque with the original cheque. Such part payment, at times, could also be mischievous with the intent to thwart the initiation of legal proceedings on the basis of the original cheque. In case part payment/s is made after the filing of the complaint, since the offence already stands completed in terms of Section 138(c) of the N.I. Act, and the proceedings have to go on, it would be appropriate, in case of conviction, for the learned Special Court, to direct compensation payable after taking into consideration, amounts received by the payee/holder of the cheque, till that time - The conduct of the complainant in disclosing recovery of part cheque amount, in the notice of demand itself, is an indicature of his bonafides and absence of malafides, for the reason that even the reply of the accused, does not address the statement made in the notice regarding recovery of Rs.40,500/- by the complainant, inspite of being aware that the accused had not made payment by letting the cheque be dishonored. Appeal allowed.
|