TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 455
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....has been dismissed by the Court of Passenger Tax, Srinagar (the Trial Magistrate). 2) With a view to appreciating the grounds of challenge taken by the petitioner, who shall be hereinafter referred to as the accused, it shall be appropriate to notice few relevant facts. 3) The respondents filed a complaint under Section 138 of the Act before the Trial Magistrate. The Trial Magistrate, after taking cognizance in the matter, issued process for the presence of the accused. 4) In response to the summons issued by the Trial Magistrate, the accused caused his appearance before the Trial Magistrate and filed an application seeking dismissal of the complaint and his discharge on the ground that before the actual presentation of the cheque by the....
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.... at a belated stage. It is argued that if the complaint is not maintainable, the same can be challenged at any stage. 7) Mr. Sajjad Ashraf, learned Government Advocate, appearing for the respondents/complainant, contests the petition on the ground that the application moved by the accused before the trial court seeking his discharge was highly belated and was filed only with a view to protract the trial and avoid adverse verdict. He contests the argument of learned counsel for the accused and submits that by making a mere request to the payee of the cheque to cancel the cheque and not present it for encashment in the bank does not absolve the drawer of the cheque from his liability under Section 138 of the Act. 8) Having heard learned cou....
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....oft loan till 100% progress was achieved and the unit was put on its revival track fully. The accused also voiced his other difficulties and also that the matter had been taken up by the association with the government for extension of moratorium period and repayment for ten years etc. etc. It is on the basis of this reply letter dated 14th of November, 2009, the accused claims that no cheque given by him to the complainant could have been deposited with the bank for encashment. It is, thus, submitted that despite the complainant having been requested to cancel all cheques, the complainant deposited the cheque No.219443 dated 4th of September, 2009 to be drawn at Ellaquai Dehati Bank, Branch Hyderpora Budgam. The cheque was dishonoured. The....
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....Chapter XVII, which is intituled as "OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS" and contains Sections 138 to 142, is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade & Technology Development Corpn. Ltd. [(1996) 2 SCC 739 : 1996 SCC (Cri) 454] in para 6 to the effect "Suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the b....
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....h had been replied on 12th from Cochi, which is the place of the respondent, whereas the Advocate who issued notice on behalf of the appellant was at Thrissur, it would seem to us that the first cheque had even been presented after the instruction of 'stop payment' issued by the appellant had become known to the respondent." (emphasis supplied) With the above observations, the complaint under Section 138 of the Act was quashed. 18. The aforesaid propositions in both these reported judgments, in our considered view, with great respect are contrary to the spirit and object of Sections 138 and 139 of the Act. If we are to accept this proposition it will make Section 138 a dead letter, for, by giving instructions to the bank to stop pay....
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....no sufficient funds available to his credit on the date of issue, but makes the arrangement or deposits the amount thereafter before the cheque is put in the bank by the drawee, and the cheque is honoured, in such a situation drawing of presumption of dishonesty on the part of the drawer under Section 138 would not be justified. Section 138 of the Act gets attracted only when the cheque is dishonoured. 20. On a careful reading of Section 138 of the Act, we are unable to subscribe to the view that Section 138 of the Act draws presumption of dishonesty against drawer of the cheque if he without sufficient funds to his credit in his bank account to honour the cheque issues the same and, therefore, this amounts to an offence under Section 138....