TMI Blog2022 (11) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... he debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part payment - When the respondent was recalled, he deposed that now, the petitioner was in due of Rs.65,000/- out of Rs.1,00,000/-. Therefore, the petitioner did not make any payment after issuance of the cheque and before the said cheque was presented for encashment. The Statute mandates that once the signature(s) of an accused on the cheque are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal notice, the respondent lodged a complaint. 3. On the side of the respondent, he was examined as P.W.1 and marked Exs.P.1 to P.6. On the side of the petitioner, no one was examined and no document was marked. On a perusal of oral and documentary evidences, the Trial Court found the petitioner guilty for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced him to pay a sum of Rs.65,000/- as fine, failing which, the petitioner shall undergo two months simple imprisonment. Aggrieved by the same, the petitioner preferred an appeal and the same was dismissed, confirming the order passed by the Trial Court. Hence, this revision. 4. The learned counsel for the petitioner raised grounds that the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation; (ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque; (iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is soug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part payment. If the unendorsed cheque is dishonoured on presentation, the offence under Section 138 would not be attracted since the cheque does not represent a legally enforceable debt at the time of encashment. In the case on hand, admittedly, while pending the complaint, the petitioner paid part of the amount i.e.Rs.35,000/- out of Rs.1,00,000/-. When the respondent was recalled, he deposed that now, the petitioner was in due of Rs.65,000/- out of Rs.1,00,000/-. Therefore, the petitioner did not make any payment after issuance of the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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