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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
N.UNNI KRISHNAN NAIR
Nur Hussain Ali S/o Late Rangsha Ali – Appellant
Versus
Jatindra Bharali S/o Late B.D. Bharali – Respondent
JUDGMENT :
N. UNNI KRISHNAN NAIR, J.
1. Heard Mr. J Roy, learned Senior counsel appearing for the appellant and Mr. AK Bhuyan, learned counsel for the respondent.
2. The present criminal appeal has been instituted by the appellant assailing the judgment dated 05.12.2013 passed by the learned Judicial Magistrate First Class, Guwahati in complaint case, being C.R. No. 2702C/2009, dismissing the same.
3. The appellant, herein, had instituted a complaint case before the Court of learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati, which was registered as C.R. No. 2702C/2009 under the provisions of Section 138 of the N.I. Act, inter-alia, praying for conviction of the respondent, herein, under the provisions of Section 138 of the N.I. Act for dishonour of two cheques issued by the respondent to the appellant, herein.
The learned Trial Court upon considering the issues arising in the said complaint case proceeded on conclusion of the trial vide judgment dated 05.12.2013 to acquit the respondent, herein, from the charge framed against him under Section 138 of the NI Act.
Accordingly, the complaint case filed by the appellant, herein, came to be dismissed.
Being aggrieved, the appellant,
Part payments made before cheque presentation can invalidate the enforceability of the debt under Section 138 of the Negotiable Instruments Act.
A cheque must represent a legally enforceable debt at maturity; part payments prior to presentation defeat claims under Section 138 of the NI Act.
The dishonour of cheques and the existence of a legally enforceable debt must be proved, and the presumption under section 139 of the NI Act can only be rebutted with strong evidence.
Presumption against the drawer of the cheque, dishonour of cheques due to closure of the account, and the petitioner's failure to rebut the presumption.
(1) Incriminating circumstances, regarding which no explanation has been called from accused, cannot be used against him.(2) Dishonour of cheque – Unless part payment is endorsed on cheque as per Sec....
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....
The presumption under Section 139 of the Negotiable Instruments Act regarding the issuance of a cheque for a legally enforceable debt is significant; an accused must substantiate any rebuttal with cr....
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.
The burden of proof lies on the complainant to establish the legally enforceable debt, and without documentary evidence, presumption under NI Act cannot be invoked.
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