TaxTMI 
TaxTMI 
2018 (6) TMI 1087
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....ep Yadav (opposite party-2) filed a complaint (registered as Criminal Complaint No. 1190 of 2012, presently Criminal Complaint No. 618 of 2016), under Section 138, Negotiable Instrument Act, 1881 (hereinafter referred to as "the Act"), PS Kavi Nagar, district Ghaziabad, against Ravindra Yadav (the revisionist). It has been alleged in complaint that Ravindra Yadav took Rs. 4,20,000/- due to family friendship during 02.10.2011 to 16.01.2012, from Pradeep Yadav with assurance of repayment of aforementioned amount up to April, 2012. In order to discharge his aforementioned liability Ravindra Yadav issued cheque No. 034897 of Rs. 4,20,000/- on 20.04.2012, (post dating it as on 02.05.2012) of his account no. 22016871, Syndicate Bank, Branch Shastri Nagar, Ghaziabad, in the name of Pradeep Yadav. Pradeep Yadav deposited aforesaid cheque in Syndicate Bank, Branch Shastri Nagar, on 02.05.2012, for its encashment. Payment was dishonoured with endorsement on the cheque that account no. 22016871 was closed on 11.03.2011. The complaint gave two legal notices dated 21.05.2012 (registration no. 2644 and 2645), i.e. one on his residential address and other on his office address, through his advoca....
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....dorsement that account had already been closed. Pradeep Yadav gave registered notice dated 21.05.2012, through his advocate to pay the amount of disputed cheque within 15 days from service of the notice. In spite of service of notice, Ravindra Yadav did not pay the amount within time as such he had committed offence under Section 138 of the Act. On these finding he convicted the revisionist under Section 138 of the Act and sentenced as mentioned above. The revisionist filed an appeal (registered as Criminal Appeal No. 128 of 2017) from the aforesaid order. The appeal was heard by Additional Sessions Judge, Court No. 2, Ghaziabad, who by his judgment dated 21.04.2018, upheld the judgment and order of the court below and dismissed the appeal. Hence this revision has been filed. 7. The counsel for the revisionist submitted that disputed cheque was undated and given by way of security at the time of the advancing loan of Rs. 2,00,000/- to Akhtar and Rs. 2,20,000/- to Azad Saifi, through cheques by Pradeep Yadav. But these cheques were canceled by Pradeep Yadav and could not be encashed by Akhtar and Azad Saifi as such the revisionist had no liability to pay the amount of disputed ch....
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....heque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said a....
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....rovide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque. If stoppage of payment of a post-dated cheque is permitted to take the case out of the purview of Section 138 of the Act, it will amount to allowing the party to take advantage of his own wrong. 11. Due to observation of Supreme Court in Krishna Janardan Bhat's Case (supra), matter was referred to a three Judges Bench in Rangappa v. Sri Mohan, (2010) 11 SCC 441, in which it has been held that even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the ''stop-payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of t....