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2016 (9) TMI 766 - PUNJAB AND HARYANA HIGH COURT

2016 (9) TMI 766 - PUNJAB AND HARYANA HIGH COURT - TMI - Dishonoring of cheque - Committing an offence under Section 138 of the Negotiable Instruments Act, 1881 - Held that:-When the cheque was bounced, on account of closure of account by the petitioner, the respondent had served a legal notice upon him before filing the present complaint, but the petitioner did not reply to the said notice. In order to invoke Section 138 of the act, the three ingredients which need to be fulfilled are (i) that .....

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he second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. Rather, it merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or liability. Thus, ingredients of Section 138 of the Act have duly been met, as the accused was unable to rebut the statutory presumption under Section 139 of the Act. - Even otherwise, the petitioner has himself suffered a stateme .....

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same was never agitated before the Courts below. This plea is altogether a new plea and the same is not admissible at this stage. Once the petitioner has made a statement that he will make the payment within a specified period and has failed to honour the same, he is estopped from raising altogether a new plea at this stage. - Criminal Revision No.2036 of 2016 (O&M) - Dated:- 13-7-2016 - MR. HARI PAL VERMA, J. For The Petitioner : Mr. K.S. Kahlon, Advocate HARI PAL VERMA, J. Petitioner has filed .....

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ous imprisonment for a period of one year and to pay costs of ₹ 2,000/-. Briefly stated, respondent-Kuljinder Singh filed a complaint against the petitioner under Section 138 of the Act and Section 420 IPC, with the allegations that the petitioner has borrowed a sum of ₹ 2,30,000/- from the respondent-complainant in the month of March, 2012 for his personal need. The petitioner had agreed to pay back the said amount within one month and in order to discharge his legal liability, he h .....

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the petitioner to make the payment of the cheque amount. However, the petitioner did not make the payment of the cheque amount in question, giving a cause of action to the respondent-complainant to file the present complaint. Petitioner was summoned under Section 138 of the Act and notice of accusations for commission of offence under Section 138 was also served upon him. The petitioner did not plead guilty and rather, claimed trial. The respondent himself stepped into the witness box as CW-1 an .....

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ial Court had framed the following issues for determination:- 1. Whether accused has issued a cheque for a sum of ₹ 2,30,000/- dated 17.04.2012 drawn on ICICI Bank Branch Phagwara in favour of the complainant in discharge of his legal liability or not? 2. Whether said cheque on presentation returned back dishonoured with the remarks Account closed and despite the issuance of legal notice accused failed to make the payment of the cheque amount within statutory period or not? The petitioner .....

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s raised on their behalf, learned trial Court vide judgment dated 7.8.2012 held the petitioner guilty for commission of offence under Section 138 of the Act and sentenced him, as mentioned in the opening para of the judgment. Aggrieved from the aforesaid judgment of conviction and sentence passed by the trial Court, the petitioner filed an appeal before learned Additional Sessions Judge, Jalandhar. However, the said appeal was dismissed with the following observations:- 13. The cheque Ex.C2 date .....

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appellant/accused himself suffered the statement in this court on 18.4.2016 that a compromise has been effected between him and respondent/complainant for an amount of ₹ 1,30,000/- on today itself i.e. 16.5.2016 and make the payment of remaining amount of ₹ 1,00,000/- after one and half month from 16.5.2016, but today he has not brought even a single penny as per the compromise dated 18.4.2016. 14. In this way he admitted regarding issuance of the cheque Ex.C2, which ultimately dish .....

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before drawing a presumption under Section 138 of the Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of enforceable debt. He further argued that the complainant-respondent was not holding money lending licence and therefore, he is legally deprived of recovering the aforesaid loan amount in the absence of his disclosure in the income tax returns. Thus, the petitioner was not liable to be proceeded against under Section 138 .....

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ing the present complaint, but the petitioner did not reply to the said notice. In order to invoke Section 138 of the act, the three ingredients which need to be fulfilled are (i) that there is a legal enforceable debt; (ii) that the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt and (iii) that the cheque so issued had been returned due to insufficiency of funds. The proviso appended to t .....

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