9911796707
Advanced Search 
TMI Blog2022 (7) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Magistrate, South Sikkim, at Namchi in Private Complaint Case No.07 of 2018. The Learned Magistrate had convicted the Petitioner herein under Section 138 of the Negotiable Instruments Act, (for short, the "NI Act") 1881 and sentenced him to pay a fine of Rs.4,00,000/- (Rupees four lakhs) only, within a period of two months from 31-12-2018 with a default clause of imprisonment. (ii) The facts briefly stated are that an Agreement for sale for a Flat situated at Siliguri, West Bengal belonging to the Respondent No.1 (hereinafter, "R1"), to be purchased by the Petitioner was entered into between them on 02-06-2017, for a consideration amount of Rs.30,00,000/- (Rupees thirty lakhs) only. Towards this an advance of Rs.6,00,000/- (Rupee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Magistrate in its Judgment dated 31-12-2018, in Private Complaint Case No.07 of 2018, which was impugned before the Court of the Learned Sessions Judge, South Sikkim, at Namchi, inter alia observed that in terms of Section 4 of the Indian Contract Act, (for short, the "Contract Act") 1872, as to when communication is complete, the Section provides that a communication of revocation is complete against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it. Hence, the communication vide Exhibit 5 was not complete when the cheques bounced. That, the defence of the Petitioner herein, that the two cheques were returned unpaid on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25-01-2018. The cheques was presented before the Bank on 30-01-2018 post the termination of agreement on 25-01-2018. Besides the cheques were handed over to the R1 by way of future security. Hence, the Learned Courts below were in error in convicting the Petitioner. 4(i). Per contra Learned Counsel for the R1 contended that when the cheques were presented the agreement was not terminated in view of the fact that the Notice although dated 25-01-2018 was posted only on 01-02-2018, reliance was placed on Purna Kumar Gurung vs. Ankit Sarda SLR (2018) SIKKIM 1065 and Sancha Bahadur Subba vs. Ramesh Sharma SLR (2020) SIKKIM 158 which deals with legal liability and on Kalamani Tex and Another vs. P. Balasubramanian (2021) SCC Online 75. On the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermined between the parties. Undoubtedly, the Notice Exhibit 1 is dated 25-01-2018, Exhibit 11 stands testimony to the fact that it was booked in the post on 01-02-2018 and received by the Petitioner only on 08-02-2018. It emerges that there was no termination of Contract when the cheques, Exhibits 1 and 2 were presented by the R1 on 30-01-2018 before the Bank and came to be dishonoured. The ground taken by the Petitioner that he had stopped payment is untenable as the Bank has clearly stated in its notes Exhibits 3 and 4 that the cheques were returned on account of insufficient fund. The act of the Petitioner is clearly covered by the provisions of Section 138 of the NI Act. On the question of legal liability the explanation to Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NI Act to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.[See Kamala S. vs. Vidhyadharan M.J. and Another: (2007) 5 SCC 264]. So far as the argument of Learned Counsel for the Petitioner that the two cheques were handed over to R1 by way of future security cannot be countenanced. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the Petitioner only on 08-02-2018. (iv) The existence of an agreement between the parties has also not been denied. The issuance of the cheques as partial payment towards the terms of the agreement has also not been denied. The evidence of the Complainant stating that the two cheques were towards discharge of a legal liability has not been demolished under cross-examination. Hence, in view of the above discussions it is evident that Exhibits 1 and 2 were issued by the Petitioner in the discharge of a legal liability. The Agreement was subsisting between the parties in view of Section 4 of the Contract Act and considering the date of posting of Notice Exhibit 11 by the R1 to the Petitioner and the fact that it was received by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
