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HIGH COURT OF GUJARAT
S.V. PINTO,
Kanubhai Bhimjibhai Tank – Appellant
Versus
State of Gujarat – Respondent
ORDER :
1. The present application is filed by the applicant-original complainant under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) seeking leave to file an appeal against the judgment and order dated 04.12.2024 passed by the learned 2nd Additional Chief Judicial Magistrate, Amreli (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1427 of 2019, whereby the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N I Act”).
1.1 The respondent No 2 is hereinafter referred to as “the accused” as he stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present application as well as the impugned judgment and order and paper book filed by the applicant are as under:
2.1 The applicant filed a complaint against the accused under Section 138 of the Act, as the accused had a debt payable of Rs. 3,80,000/- to the applicant arising out of partnership with the applicant and the accused had issued cheque No.273597 for the amount of Rs. 1,50,000/- dated 19.08
The court affirmed that the applicant failed to establish a legally enforceable debt under Section 138 of the NI Act, leading to the dismissal of the appeal for leave.
The presumption under Section 139 of the Negotiable Instruments Act must be drawn in favor of the holder of the cheque, and misinterpretation of evidence by the Trial Court warrants leave to appeal.
The presumption of a cheque being for discharge of a debt is rebuttable, and the applicant failed to prove the cheque represented a legally enforceable debt.
The presumption under Section 139 of the NI Act establishes that a cheque is issued for a legally enforceable debt, placing the burden on the accused to rebut this presumption with a probable defense....
The presumption under Section 139 of the NI Act is rebuttable, and the burden of proof lies on the accused to establish a probable defense against the existence of a legally enforceable debt.
The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the accused must raise a probable defense to contest the existence of a legally enforceable debt.
The presumption of a legally enforceable debt under Section 139 of the NI Act is rebuttable, and the burden lies on the accused to raise a probable defence.
In cheque dishonor cases, the presumption under Section 139 of the NI Act is rebuttable; the accused can establish a defense based on preponderance of probabilities.
The statutory presumption under Section 139 of the Negotiable Instruments Act must be applied in favor of the holder in due course unless effectively rebutted by the accused.
:DISHONOUR OF CHEQUE – ACQUITTAL UNDER - under Section 139 of the N.I. Act, there is a presumption that the holder of the cheque received it for the discharge of debt or liability, but the existence ....
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