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SOPHY THOMAS
Nakulan Kunjupanicker – Appellant
Versus
State of Kerala And Another – Respondent
JUDGMENT :
This appeal is at the instance of the complainant in C.C. No. 894 of 2005 on the file of Judicial First Class Magistrate Court, Kayamkulam, challenging acquittal of the accused under Section 138 of the Negotiable Instruments Act (for short, the NI Act), vide judgment dated 12.12.2006.
2. The case of the complainant is that, the accused borrowed Rs.2 lakh from him, and issued Ext.P1 cheque dated 10.10.2005, assuring that it would be honoured on presentation before the bank. But the cheque was returned dishonoured for the reason ‘insufficient funds’. Though lawyer notice was sent intimating dishonour of the cheque and demanding the cheque amount, the amount was not repaid. Since the complainant was working abroad, his brother filed the complaint on the strength of his power of attorney.
3. On taking cognizance, and on appearance of the accused before the trial court, particulars of offence were read over and explained, to which he pleaded not guilty, and claimed to be tried. Thereupon, PWs.1 and 2 were examined, and Exts.P1 to P8 were marked from the side of the complainant to prove his case.
4. On closure of the complainant’s evid
A power of attorney holder can present a cheque on behalf of the payee, and the absence of a date on the cheque does not invalidate it if issued for a loan.
The court clarified that for criminal liability under Section 138, a cheque must be presented to the drawee bank within six months from its date.
A company can authorize an employee to file a complaint under the Negotiable Instruments Act, and a signed blank cheque can create a presumption of liability unless rebutted by the accused.
The burden of proof lies on the complainant to establish the existence of a legally enforceable debt and the execution of the cheque, especially when the accused denies the transaction.
Power of attorney holders can file cheque dishonour complaints if they possess personal knowledge of the transaction; absence of such knowledge may invalidate the complaint.
A cheque issued as security does not constitute a discharge of a legally enforceable debt under the NI Act.
once execution of the promissory note is admitted, or proved, the presumption under Section 118(a) of the Act would arise that it is supported by consideration. It is a rebuttable presumption. The ac....
A cheque issued as security does not constitute a legally enforceable debt under Section 138 of the Negotiable Instruments Act.
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