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ARUN DEV CHOUDHURY
Dilip Kr. Das S/o Lt. H C Das – Appellant
Versus
State Of Assam – Respondent
JUDGMENT :
1. Heard Mr. P Kataki, learned counsel for the petitioner and B Sarma, learned Addl. PP, appearing for the respondent No.1, State of Assam. Also heard Mr. A.K. Bhuyan, learned counsel for the respondent No.2.
2. By way of the present application under section 397/401 Cr.P.C., the petitioner has challenged the judgment and order dated 24.09.2012 passed by the learned Addl. District & Sessions Judge (FTC), No.2, Kamrup at Guwahati in Criminal Appeal No. 15/2012, whereby and whereunder, the judgment and order dated 21.01.2012 passed by learned JMFC, Kamrup, Guwahati in CR Case No.2750C/2004, convicting the petitioner for offence under section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer Simple Imprisonment for three months and to pay a fine of Rs.3,10,000/- was upheld.
3. The brief facts which are necessary for determination of the present lis is recorded herein below:
A cheque issued as security can be presented for payment if the loan is not repaid within the stipulated time, affirming liability under Section 138 of the Negotiable Instruments Act.
The issuance of a cheque signifies a legally enforceable debt under Section 138 of the N.I. Act, and the burden to prove otherwise lies with the accused, not the complainant.
The crucial consideration is whether at the time of presentation of the cheque for encashment, there was a legally enforceable debt or liability due to the complainant from the accused. The nomenclat....
A cheque issued as security can incur liability under Section 138 if a legally enforceable debt exists at the time of its presentation.
Cheques issued in discharge of a lawful liability create a presumption of guilt under Section 138, which the accused must rebut to avoid conviction.
Dishonour of cheque – When a cheque is issued towards a time-barred debt and is dishonoured, liability under Section 138 of N.I. Act squarely arises.
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