TMI Blog2018 (8) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under Section 138 of the said Act could not be said to have been committed by the respondent. Another important aspect of the present case is that when there is lack of evidence to show dishonour of cheque and consequently the date when the cheque was dishonoured, there is no reference point to ascertain as to whether the notice for demand of payment was issued by the appellant to the respondent within the period of 30 days of receipt of information from the bank regarding return of cheque as unpaid, as provided under proviso (b) to Section 138 of the said Act - This is the reason why the trial Court has held that the appellant failed to prove that she made demand for payment of amount within the statutory period, as the statutory period could not be computed in the facts of the present case. Analysis of the provisions of the said Act, particularly Sections 138, 142 and 146 thereof, shows that cognizance of the offence under Section 142 of the said Act could not have been taken by the Court in the present case because the basic fact of dishonour of cheque could not be proved by the appellant - the complaint in the present case was correctly rejected by the trial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring evidence. The appellant entered into the witness box, in support of her case. 5. On the other hand, the respondent did not lead any evidence in support of her defence. She relied on the cross examination of the appellant to demonstrate that the cheque in question was given to certain persons from a Bachat Gat for obtaining loan. However, there was no direct suggestion made to the appellant in cross examination that the said cheque was given by the respondent to any of the said persons. It could also not be brought on record by the respondent that the appellant had any relations with those persons to whom the cheque was allegedly handed over. On the basis of the oral and documentary evidence, the trial Court found that although the appellant had been able to prove that the cheque in question pertained to discharge of legal debt i.e. repayment of hand loan, it was found that the appellant had failed to prove that the cheque had been dishonoured and consequently notice issued to the respondent was within the statutory period specified under Section 138 of the aforesaid Act. On this basis, the trial Court found that the complaint of the appellant was liable to be dismissed. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent. Reference was made to Sections 101 to 104 of the Indian Evidence Act, 1872, to emphasize that the burden of proof was absolutely on the appellant to prove the said facts pertaining to dishonour of cheque and that in the absence of cogent evidence to prove the same, no error could be found with the impugned judgment and order passed by the trial Court. It was submitted that Section 138 read with Section 142 of the said Act required that all the conditions specified under the said provisions were to be satisfied for cognizance of offence under Section 138 of the Act to be taken by the Court. It was submitted that in the present case, admittedly, the cheque in question had been deposited twice. Although cheque (Exhibit-21) did bear a stamp of the bank, there was no date to indicate as to when it was deposited. The memo purportedly issued by the bank for return of cheque did not bear official mark of the bank and therefore, it did not satisfy the requirement of Section 146 of the aforesaid Act. It was submitted that even if it was accepted that Section 146 of the Act provided only one of the modes in which dishonour of cheque could be proved, the appellant in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of dishonour and a presumption operates about the fact of the dishonour of cheque, unless and until such fact is disproved. Thus, once such a memo or slip issued by the bank bearing its official mark concerning dishonour of cheque is placed on record by the complainant, the burden is clearly on the accused to disprove the fact of dishonour of cheque. 11. But, there cannot be any doubt about the fact that Section 146 of the said Act provides for one of the modes of proving dishonour of cheques and it certainly cannot be the only mode of proving the same. In the present case, the memo purportedly issued by the bank showing dishonour of cheque, admittedly does not bear official mark of the bank. It was for this reason, that the said document was not exhibited during evidence. Thus, the mode specified in Section 146 of the said Act was not satisfied in the present case and consequently no presumption arose about dishonour of cheque in question. In such a situation, the appellant claims that the dishonour of cheque was proved because a statutory notice was issued by her to the respondent. It was pointed out that specific pleadings were made in the complaint filed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced on record by the appellant in the present case, it would constitute prima facie evidence of dishonour of cheque and burden would have been entirely on the respondent to disprove such a fact. But, when the memo produced in the present case by the appellant did not bear official mark of the bank, there was no document as contemplated under Section 146 of the said Act to presume that the fact of dishonour of cheque had been proved by the appellant. The burden continued to lie on the appellant to prove the basic fact of dishonour of cheque, in the facts and circumstances of the present case. 14. In such a situation, mere statement made in the statutory notice and the complaint filed before the Court would not constitute proof of dishonour of cheque, unless further evidence to corroborate the same was placed on record on behalf of the appellant. The appellant is not justified in claiming that such statements would suffice as proof of dishonour of cheque because the respondent failed to enter the witness box in support of her defence. As the complainant, it was for the appellant to prove the fact of dishonour of cheque by cogent evidence. The appellant could have examined the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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