TaxTMI 
TaxTMI 
2018 (8) TMI 633
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....or an amount of Rs. 1,63,000/towards the repayment of the said loan. 3. But, when the cheque was presented for encashment on 26.03.2014, it was dishonored for the reason "insufficient funds". This fact was informed by the appellant to the respondent, who asked the appellant to again present the cheque for encashment after one month and she assured that the cheque would be encashed. Accordingly, on 12.05.2004, the appellant again presented the cheque for encashment. But, it was dishonoured once again for the same reason. Consequently, the appellant issued demand notice to the respondent. In this situation, the appellant was constrained to file complaint under Section 138 of the said Act, against the said respondent. 4. In support of her case, the appellant placed on record documents in the form of disputed cheque (Exhibit-21), demand notice (Exhibit-22), postal acknowledgment (Exhibit-23) and statement of the appellant recorded by the Police (Exhibit-24). The appellant also placed on record a computer generated copy of the memo issued by the bank when the cheque was dishonoured along with list of documents at Exhibit20. But, since the said memo did not bear official mark or sign....
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.... and also in her oral evidence before the Court that the cheque had been dishonoured, it was for the respondent to bring some evidence on record to dispute the same, particularly when presumptions under Sections 118 and 139 of the aforesaid Act operated against her. It was further submitted that the trial Court was not justified in placing reliance on Section 146 of the aforesaid Act to hold that the appellant had failed to prove dishonour of cheque because the said provision indicated only one of the many ways in which proof of dishonour could be placed on record. On this basis, it was submitted that when the trial Court itself had held in favour of the appellant on the merits of her claim, the complaint could not have been rejected and that the respondent ought to have been convicted for offence punishable under Section 138 of the said Act. 7. Per contra, Shri R.R. Vyas, learned Counsel appearing on behalf of the respondent, submitted that since the present case concerned criminal liability alleged against the respondent, the burden of proof was entirely on the appellant to prove the basic facts of deposit and dishonour of cheque, in order to claim that an offence under Section ....
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....he trial Court found that the issue of legal debt or liability was proved by the respondent, the only question that arises in the present case is, as to whether it could be said that there was sufficient evidence to prove dishonour of cheque to conclude that the respondent had committed offence under Section 138 of the said Act. There can be no doubt about the proposition that it was for the appellant prove the fact of dishonour of cheque so as to prove the guilt of the respondent. 9. In this context, Section 146 of the aforesaid Act is relevant, which reads as follows : "146. Bank's slip prima facie evidence of certain facts.The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved." 10. The said provision states the manner in which a complainant can prove dishonour of cheque. The complainant is required to produce slip or memo having an official mark on it, denoting that the cheque has been dishonoured. If such a document is placed on record by the comp....
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....e offence under Section 138 of the said Act is said to have been proved, criminal liability is fixed upon the accused (respondent in the present case) and therefore, the evidence on record and the burden of proof have to be analyzed on the touchstone of proof beyond reasonable doubt. The burden of proof clearly lies upon the appellant in the present case to prove basic facts that would constitute an offence under Section 138 of the aforesaid Act. Under the said provision the offence is deemed to have been committed, the moment cheque in question is returned by the bank unpaid. Therefore, it is necessary that there is proof of return or dishonour of the cheque in question before it can be said that an offence under Section 138 of the Act has been committed. 13. When the complainant (appellant in the present case) asserted that the cheque was returned or dishonoured, it was for her to prove this basic fact. Section 146 of the said Act provides that if the complainant places on record a slip or memo issued by the bank having official mark of the bank thereon, denoting that the cheque was dishonoured, it would be presumed that such cheque was dishonoured until such fact was disproved.....