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NISHA M. THAKORE
Dilipkumar Manharlal Vyas,Since Deceased Through Legal Heirs – Appellant
Versus
Girdharlal Hirajibhai – Respondent
JUDGMENT :
A. Scope of the Appeal:
1. This appeal is filed at the instance of the appellants-original complainants, challenging the judgment and order dated 31.07.2007 passed by learned Judicial Magistrate First Class at Manavdar, District- Junagadh in Criminal Case No.176 of 2005. By the said judgment and order, the learned Magistrate has recorded acquittal of respondent No.1-original accused for the offence punishable under Section138 of the N.I. Act.
B. Facts:
2. Brief facts leading to the present case in nutshell are as under: That original complainant had given the friendly loan of Rs.2,00,000/- to the respondent No.1 by cheque No.70781 dated 15.12.1998 and said amount had been withdrawn by the respondent No.1 and accordingly, respondent No.1 had received the same from the original complainant. That said amount had been returned back and for that sum of Rs.60,000/- had been paid in cash and for the remaining amount of Rs.1,40,000/-, cheque dated 31.12.2004 had been given by the respondent No.1. The said cheque had been deposited in the bank account, but the said cheque had been returned with banker’s endorsement “account is closed”. Thereafter, the original complainant had issued
A cheque issued for a time-barred debt does not constitute a legally enforceable debt under Section 138 of the Negotiable Instruments Act, leading to no offence being committed.
The presumption under Section 139 of N.I. Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of i....
A cheque issued as security does not constitute a legally enforceable debt under Section 138 of the Negotiable Instruments Act, and the presumption of liability can be rebutted by presenting credible....
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.
Appeal against acquittal under Section 138 NI Act not interferable unless perverse; prior cheque loss notification rebuts presumption; complaint premature before 15 days from 30-day deemed notice ser....
The issuance of a cheque carries a presumption of consideration, which is rebuttable by the accused. Failure to prove the non-existence of a debt results in liability under Section 138 of the NI Act.
A drawer of a cheque is presumed liable unless they provide evidence to rebut the presumption of issuance for debt repayment, established under Sections 138 and 139 of the Negotiable Instruments Act.
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