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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SANDEEP SHARMA
Arvind Verma – Appellant
Versus
Dhian Singh – Respondent
| Table of Content |
|---|
| 1. s.138 ni act requires dishonour for insufficient funds. (Para 1 , 2 , 5) |
| 2. quashing u/s 528 bnss cannot decide evidence-based factual issues. (Para 3 , 4 , 6) |
| 3. petition to quash dismissed lacking merit. (Para 7) |
JUDGMENT :
Sandeep Sharma, J.
By way of present petition, prayer has been made by the petitioner to quash and set-aside complaint filed by the respondent/ complainant under Section 138 of Negotiable Instruments Act, pending in the court of learned Additional Chief Judicial Magistrate Theog, in case No. 335 of 2022.
2. Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Ravinder Singh Chandel, Advocate, is that no case much less under Section 138 of the Negotiable Instruments Act (in short “Act”) is made out against the petitioner for the reason that cheque issued by the petitioner-accused towards discharge of lawful liability was never dishonoured on account of “insufficient funds” in his bank account, rather same came to be returned vide return memo dated 6.7.2022 with remarks “account freezed”. While referring to return memo placed on record (Annexure P-2), learned counsel for the petitioner, submit
Cheque dishonour complaint under Section 138 not quashable under inherent powers when reason for return (insufficient funds vs. account freeze) is disputed and requires evidentiary determination at t....
A complaint under Section 138 of the Negotiable Instruments Act is maintainable even if the cheque is dishonoured due to the account being frozen.
(1) Dishonour of cheque – If Magistrate takes cognizance of an offence, issues process without there being any allegation against accused, in absence of any review power or inherent power with subord....
Dishonor of cheques marked as 'account blocked' is actionable under S.138 of the Negotiable Instruments Act, 1881.
Point of Law : High Court has committed grave error of law in quashing criminal complaints filed by appellant in respect of offence punishable under Section 138.
The foundational facts required to draw statutory presumption under Section 139 of the Negotiable Instruments Act, 1881 must be proved with evidence, and the presumption is rebuttable.
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.
The presumption of a legally enforceable debt under the Negotiable Instruments Act remains until disproven, and the determination of such issues is a matter for the trial court.
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