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ARUN DEV CHOUDHURY
G. O. B. Enterprise, Rep. By One Of Its Partner Namely Sri Chakra Dhar Das – Appellant
Versus
Progressive Motors, Rep. By Its Attorney Sri Nabin Chandra Phukan Joynagar – Respondent
JUDGMENT :
(Arun Dev Choudhury, J.)
1. Heard Mr. G. Baishya, learned counsel for the petitioners. Also heard Mr. A. Bhattacharya, learned counsel for the respondent.
2. The present application is filed under Section 482 read with Section 397 and 401 of the Code of Criminal Procedure, 1973 assailing an order dated 16.06.2016 passed by the learned Judicial Magistrate First Class, Kamrup (M), Guwahati, whereby cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 was taken in Complaint Case No. 208C/2016. The further challenge is an order dated 30.03.2017 passed by the learned trial court, whereby a petition registered as Petition No. 9456 dated 30.03.2017 preferred by the accused petitioner seeking dismissal of the complaint case on the ground of pendency of a civil suit filed by the accused was rejected. Yet another prayer made in the petition is for quashment of the entire proceeding.
3. Mr. G Baishya, learned counsel for the petitioner submits that the actual amount of legally enforceable due has not been disclosed, though the complainant had made a vague statement that cheques were issued against legally enforceable debt. Therefore, in absence of such detai
The court affirmed that a complaint under Section 138 NI Act does not require exhaustive details of the debt, as the presumption of liability under Section 139 suffices for taking cognizance.
The court reaffirmed that the presumption of liability under Section 139 of the Negotiable Instruments Act must be established through evidence at trial, not pre-trial.
A cheque issued as security does not negate potential liability under S.138 of the Negotiable Instrument Act if essential legal conditions are met.
The presumption under Section 139 of the NI Act is rebuttable, and the burden shifts to the complainant once the accused raises a probable defense.
Dishonour of a cheque due to insufficient funds constitutes an offence under Section 138 of the N.I. Act, regardless of claims of theft, unless the evidence at trial proves otherwise.
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