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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA
Shyam Lal – Appellant
Versus
Gagan Vasudeva – Respondent
| Table of Content |
|---|
| 1. trial court acquitted on cheque loss and capacity doubts. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. trial erred in rebutting presumption and doubting capacity. (Para 7 , 9) |
| 3. chequebook lost; no loan proof produced. (Para 10) |
| 4. interfere with acquittal only if patently perverse. (Para 11 , 12 , 13) |
| 5. time-barred debt cheque not attracts section 138. (Para 14 , 15 , 16 , 17) |
| 6. lack of capacity rebuts ni act presumption. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 7. sections 118(a), 139 presumption is rebuttable. (Para 25 , 26) |
| 8. prior loss report bars section 138 offence. (Para 27 , 28 , 29 , 30) |
| 9. appeal dismissed; no interference warranted. (Para 31 , 32) |
JUDGMENT :
Rakesh Kainthla, J.
The appellant has filed the present appeal against the judgment dated 04.12.2023 passed by learned Judicial Magistrate First Class, Court no. 3, Mandi, District Mandi, H.P. (learned Trial Court) vide which the complaint filed by the appellant (complainant before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal are tha
Cheque for time-barred debt not liable under Section 138 NI Act; Sections 118/139 presumption rebutted by prior stop payment on lost cheque and lack of financial capacity proof; acquittal interferenc....
Presumption under Sections 118(a) and 139 of NI Act rebutted on preponderance of probabilities where cross-examination shows complainant's lack of financial capacity as housewife with unproven remitt....
The presumption of consideration for a cheque does not negate the complainant's burden to prove the existence of a legally recoverable debt, which can be rebutted by the accused.
The burden is on the complainant to prove financial capacity when questioned; a mere presumption does not suffice if evidence is lacking.
Presumption under NI Act ss.118/139 rebuttable by evidence of complainant's lack of financial capacity via cross-examination; no appellate interference with reasonable acquittal; IT Act s.269SS viola....
Presumption under Section 139 NI Act shifts burden to accused to rebut by probable defence; trial court erred in requiring complainant to prove debt, rendering acquittal perverse in appeal.
Presumption under Section 139 of the Negotiable Instruments Act requires the accused to present credible evidence to rebut the holder's claim of legal liability regarding the cheque issued.
The presumption under Section 139 of the Negotiable Instruments Act is rebuttable; the burden shifts to the complainant to prove existence of debt when the accused raises a probable defense challengi....
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