TaxTMI 
TaxTMI 
2020 (3) TMI 988
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.... / respondent herein is that the petitioner has borrowed a sum of Rs. 4,50,000/- on 30.10.2012 as hand loan and issued a post-dated cheque for the said amount, on the same day. When the said cheque was presented on 01.12.2012 for encashment, the same was returned as funds insufficient on 04.12.2012. Thereafter, as per the request of the petitioner, the cheque was again presented for collection on 18.12.2012 and the same was returned for the very same reason. Thereafter the respondent has issued a statutory notice on 07.01.2013. Though the petitioner received the said notice, he has not sent any reply. Hence the respondent has preferred a private complaint under Section 200 of the Cr.P.C, for the offence under Section 138 of the Negotiable I....
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.... 6. The leaned counsel for the petitioner has submitted that the Courts below passed the judgements only on surmises and not on settled proposition of law; the courts below erred in convicting the petitioner without considering the material fact that the respondent misused the cheque given as security for the lorry which was hypothecated with one Sri Ram Finance. He also submitted that the petitioner is not liable to meet out the alleged debt, as projected by the respondent. 7. Per contra, the learned counsel for the respondent / complainant submitted that based on the materials and evidence on record the Courts below have concurrently found the petitioner guilty under Section 138 of the Negotiable Instruments Act, convicted and sente....
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....omplainant was substantiated by the evidence and documents produced by the complainant. In the absence of any contra evidence or document on the part of the petitioner or any error apparent on the face of the record, it cannot be contended that the findings of the Courts below are perverse. Hence this Court is of the view that the findings of the courts below do not require any interference. 11. At this juncture, a feeble attempt was made by the learned counsel for the petitioner contending that the respondent has presented the cheque twice and hence that itself would show that the case of the respondent is not true. 12. The said contention no longer holds good. The Supreme Court in the case of Sadanandan Bhadran v. Madhavan Sunil Kum....
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....wn reasons. In that event, obviously the payee or holder in due course will lose his right to prosecute the offender for the offence. But, so long as the cheque remains unpaid, the payee or holder in due course will certainly be entitled to present the cheque again. If the cheque is again dishonoured, no provision in Chapter XVII of the Act would expressly preclude the payee or holder in due course from issuing a notice of demand under clause (b) of the proviso to Section 138 of the Act and in case of default in making payment as demanded from filing a complaint, on the basis of the fresh cause of action which accrues to him thereby for a second time. If such a complaint is filed and the complainant is able to establish all the ingredients ....
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....Section 138 of the Negotiable Instruments Act. Primarily the onus to prove the fact that the cheques were not issued for discharge of any debt and liabilities lies on the accused (petitioner) and not on the (complainant) respondent. Here, in this case, the petitioner has not rebutted such onus by producing oral and documentary evidence, which is fatal to the case of the petitioner. 15. Further more, there is no iota of evidence or document on the side of the petitioner by way of reply to prove that there is no legally enforceable debt or liability due to the complainant. Hence, the petitioner has not rebutted the presumption as contemplated under Section 139 of the Negotiable Instruments Act. 16. In view of the above reasonings, this ....