184.
(Allahabad HC) 02-09-2022
A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Cheque bounce complaint – Presumption that the cheque had been issued for a debt or liability – Rebuttal of presumption -- Section 138 deals with a cheque drawn by a person "for the discharge, in whole or in part, of any debt or other liability." -- The section does not say that the cheque should have been drawn for the discharge of any debt or other liability of the drawer towards the payee -- Thus in complaint u/s 138 of N.I. Act, the Court has to presume that the cheque had been issued for a debt or liability -- This presumption is rebuttable.
(Para 10)
B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Cheque bounce complaint – Presumption that the cheque had been issued for a debt or liability – Rebuttal of presumption -- Applicant being holder of cheque and the signature appended on the cheque having not been denied by the Bank, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability -- Presumption u/s 139 is a rebuttable presumption.
(Para 10)
C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Cheque bounce complaint – Service of notice -- It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice -- Unless and until the contrary is proved by the addressee, the service of notice is deemed to have been effected at the time, at which the letter would have been delivered in the ordinary course of business.
(Para 11)
D. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Cheque bounce complaint – Service of notice -- Complaint cannot be thrown at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date -- Factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court.
(Para 16)
E. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Cheque bounce complaint – Quashing of -- Stolen cheque – Ground of -- Submission that the cheque was stolen -- If the cheque was stolen, the applicant should have given information for the same to the Bank and also lodged an FIR regarding loss of the check -- However, there is nothing on record to show that the cheque was stolen and the information regarding missing of cheque was also not given to the bank -- However, after nearly one year, when opposite party no.2 came to know about the said complaint u/s 138 of N.I. Act, he sent a letter to the bank regarding missing of check book, but neither the details of check has been mentioned nor any complaint has been made regarding the same earlier -- All the submissions made is disputed questions of fact - Therefore, when the facts have to be established by way of evidence, High Court while exercising the powers u/s 482 of Cr.P.C., cannot interfere with such proceedings -- Hence, no grounds are made out for quashing of the proceedings u/s 138 of the NI Act -- Application dismissed.
(Para 17-19)