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S. TALAPATRA
Md. Saha Alam – Appellant
Versus
Md. Gulam Mustafa – Respondent
| Table of Content |
|---|
| 1. background of the cheque dishonor case (Para 1 , 2) |
| 2. court’s analysis on evidence presented (Para 3 , 4 , 5) |
| 3. discussion on the legal framework of charge alteration (Para 6 , 8) |
| 4. principles governing charge alteration under law (Para 9 , 10 , 12) |
| 5. conditions for maintaining prosecution under section 138 ni act (Para 11 , 15 , 16) |
| 6. conclusion of appeal and dismissal (Para 17 , 19) |
JUDGMENT
This is an appeal under Section 378 (4) of the Cr.P.C. against the judgment and order of acquittal dated 29.06.2019 delivered in Case No.CR.(NI) 02 of 2016 by the Chief Judicial Magistrate, Sepahijala, Sonamura.
[2] The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, NI Act in short, when a cheque bearing No.968670 dated 15.09.2018 for the amount of Rs.6,50,000/- [Rupees Six lakhs Fifty thousand] drawn on United Bank of India, Sonamura Branch was dishonoured ‘due to insufficiency of fund.’ The said cheque was sought to be encashed through the State Bank of India, Sonamura Branch. On 21.09.2016, the appellant received the memo of return recording dishonour of the said cheque for insufficiency of fund. Apparently, the appellant followed the
A cheque issued from an account not held by the issuer fails to satisfy the basic requirements under Section 138 of the Negotiable Instruments Act, leading to acquittal.
A dishonored cheque primarily for insufficient funds establishes liability under Section 138, while secondary reasons like signature discrepancies are irrelevant unless intent to defraud is proven.
A person who is not a signatory to the cheque cannot be prosecuted under Section 138 of the Negotiable Instruments Act, 1881, for the offence of dishonour of cheque for insufficiency of funds.
The presumptions under sections 138 and 139 of the NI Act favor the holder, shifting the burden to the accused to rebut the claims of liability.
Conviction under Section 138 of the Negotiable Instruments Act affirmed, emphasizing the necessity of due process in criminal trials and the validity of a Magistrate's authority.
Issuance of summons without conducting inquiry under Section 202 of the Cr.P.C. is impermissible, making the cognizance under Section 138 of the N.I. Act unsustainable.
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