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M. K. THAKKER
Amarben Jethabhai Parmar – Appellant
Versus
Narendrabhai Kalidas Chavda – Respondent
ORDER :
1. This matter is a glaring example of misusing of the powers by the Police Officer who is doing the business of money lending.
2. The present application is filed seeking leave to prefer an appeal against the judgment and order dated 09.08.2023 passed by the learned 7th Additional Judicial Magistrate First Class, Mahesana in Criminal Case No. 3066 of 2020 acquitting the respondent-accused for the charges punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”).
3. It is the case of the complainant namely Amarben that complainant lent the amount of Rs.2,50,000/- for education of children and treatment of accused’s father’s cancer ailment in several parts starting from 15.08.2019 to 22.10.2019 to the accused. For the repayment of the aforesaid hand loan the cheque bearing no. 000002 dated 26.02.2020 of Rs.2,50,000/- was issued in favour of the complainant and on depositing the same on 03.03.2020, it was returned with an endorsement of “funds insufficient” 04.03.2020. With above contention, private complaint came to be filed before competent court.
4. On being summoned, the accused appeared and his plea was recorded wherein,
The accused can rebut the presumption in favor of the complainant by raising a probable defense, and the burden of proof shifts to the complainant in such cases.
The judgment established the principle that the presumption of debt and liability under Sec. 139 of N.I. Act can only be rebutted by probabalising a defence, and the standard of proof required is pre....
The presumption of a legally enforceable debt is rebuttable and the prosecution must prove its case beyond reasonable doubt, which was not met in this instance.
The main legal point established is that once the execution of the cheque is admitted, the presumption under Section 139 of N.I. Act mandates that the cheque was for the discharge of any debt or othe....
In a case under Section 138 of the N.I. Act, the burden of proof shifts to the appellant once the respondent raises a probable defense.
Presumption under Sec. 139 of N.I. Act mandates that the cheque was for the discharge of any debt or liability, and the burden is on the accused to raise a probable defense to rebut the presumption.
The legal principle established is that the presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the onus is on the accused to raise a probable defense.
The statutory presumption under Section 139 of the Negotiable Instruments Act places the initial burden on the complainant to prove the circumstances under which the cheque was issued and that it was....
Presumption under Sections 118(a) and 139 of NI Act rebutted on preponderance of probabilities where cross-examination shows complainant's lack of financial capacity as housewife with unproven remitt....
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