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TMI Blog2021 (2) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... jesh Somani. The report submitted by police disclose that the respondents could not be traced out at the given address. Since both the parties are absent and did not appear before the Court, the appeal is taken up for consideration and disposal by exercise of powers vested in this Court under Section 386 of the Code of Criminal Procedure. Opportunity was given to the appellant and the respondents to appear and make their submissions but they have failed to do so. The appellant, who is the complainant in C. Case No.518 of 1997 under Section 138/141 of the Negotiable Instruments Act has preferred this appeal under Section 378(4) of the Code of Criminal Procedure, assailing the order dated 2.5.2001 passed by the Metropolitan Magistrate, 8th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person was summoned and the accused/respondent no.2 on examination under Section 251 of the Code of Criminal Procedure pleaded not guilty to the accusation under Sections 138/141 of the Negotiable Instruments Act. In support of his case the complainant examined himself as PW-1. One Gautam Banerjee, the Manager of Allahabd Bank was examined as PW-2, Satyajit Sarvadhikary, a staff of the State Bank of Indore, Brabourne Road was examined as PW-3. Documents have been marked as exhibit 1 to exhibit-12 for the complaint which includes documents, like demand notice, cheques, dishonour memo and certified copy of ledger of bank. Accused no.2 was examined under Section 313 of the Code of Criminal Procedure who admitted that cheques were dishonoure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to be set aside and accused/opposite party should be held guilty of the offence under Section 138/141 of the Negotiable Instruments Act and sentenced and directed to compensate the appellant. It appears to me that the learned Magistrate had failed to appreciate the evidence and the presumption under Section 139 of the Negotiable Instruments Act, that the onus lies upon the accused person, who issued the cheques. Therefore, a person who has undisputedly issued the cheques cannot shirk the responsibility when they are dishonoured unless he proves that such cheques were not for discharge of debt or other liability in whole or in part in favour of the payee. The Ld. Magistrate has misplaced the burden of proof. In my considered vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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