9911796707
TMI Blog2014 (7) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the complainant, a total sum of Rs. 3,00,000/- has been received by the accused. According to the Appellant, to discharge the said debt, accused No. 1 gave a cheque dated 1/2/2011. The Appellant presented the said cheque for payment through his bank on 2/2/2011. The said cheque was dishonoured on the ground that the accused did not have sufficient funds in their account. A copy of the Memorandum dated 12/2/2011 issued by the Karur Vysya Bank Limited is on record at Annexure P-1. 2. Inasmuch as the said cheque was dishonoured, the Appellant issued Notice dated 2/3/2011 to the accused calling upon them to pay the cheque amount of Rs. 3,00,000/- within 15 days. The accused replied to the said notice contending that the Appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to payment of time barred debt, there must be a distinct promise to pay either whole or in part the debt; that the promise must be in writing either signed by the person concerned or by his duly appointed agent. The High Court then observed that unless a specific direction in the form of novation is created with regard to payment of the time barred debt, Section 25(3) of the Contract Act cannot be invoked. The High Court then went into the question whether issuance of cheque itself is a promise to pay time barred debt and referred to Sections 4 and 6 of the NI Act. After referring to certain judgments on the question of legally enforceable debt, the High Court stated that for the purpose of invoking Section 138 read with Section 142 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint was not maintainable. While dealing with the challenge to this order, this Court observed that Under Section 118 of the NI Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. This Court further observed that Section 139 of the NI Act specifically notes that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for discharge, in whole or in part, of any debt or other liability. This Court further observed that under Sub-section (3) of Section 25 of the Contract Act, a promise, made in writing and signed by the person to be charged therewith, or by his agent gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court pertained to the proper interpretation of Section 139 of the NI Act which shifts the burden of proof on to the accused in cheque bouncing cases. This Court observed that the presumption mandated by Section 139 of the NI Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. This Court further observed that Section 139 of the NI Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. This Court clarified th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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