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1 - 10 of 12 (0.59 seconds)M/S. Modi Cements Ltd vs Shri Kuchil Kumar Nandi on 2 March, 1998
The judicial pronouncements by the apex court in
Modi Cements Ltd. v. Kuchil Kumar Nandi ((1998) 3
SCC 249), M.M.T.C. Ltd. and another v. Medchl
Chemicals and Pharma (P) Ltd. and another ((2002) 1
SCC 234) and Geoplast Pvt. Ltd. v. Chico Ursula D'Souza
(2003 (2) KLT 16 (SC)), it is noticed, have not been brought
to the notice of the learned Judge who rendered the decision
in Chackochan T.K. v. P.P.Paul and another (2008 (4)
KHC 922), expressing the view that the complainant has to
plead and prove that the stop payment instruction was issued
to circumvent penal liability under Section 138 of the N.I.Act.
That view, with respect, run counter to the decisions of the
apex court, referred to above, which have laid down the
principle that the burden was on the accused when a cheque
issued by him got dishonoured on his stop payment instruction
that he had sufficient funds to clear the amount under the
instrument and the stop payment instruction was given for
other valid reasons.
M/S M. M. T. C. Ltd. & Anr vs M/S Medchl Chemicals & Pharma P. Ltd. & ... on 19 November, 2001
The principle laid down by the apex court
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casting the burden on the accused under the circumstances
referred to is succinctly stated thus in M.M.T.C. Ltd. and
another v. Medchl Chemicals and Pharma (P) Ltd. and
another ((2002) 1 SCC 234):
K.K. Sidharthan vs T.P. Praveena Chandran And Another on 8 October, 1996
Similarly, the view taken by the apex court in
K.K. Sidharthan v. T.P.Praveena Chandran ((1996) 6
SCC 369), that issue of the cheque at the time when there
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was sufficient balance in the accounts would not constitute an
offence has been held to be not laying the good law by the
apex court in the later pronouncements already indicated
above.
Section 139 in The Negotiable Instruments Act, 1881 [Entire Act]
Bhageerathy vs V. Beena And Anr. on 23 June, 1992
The decision
Bhageerathy v. Beena (1992 (2) KLT 31) and Ashok v.
Vasudevan Moosad (1993 (1) KLT 671) cannot be
considered as having laid down the correct principles in view
of the later judicial pronouncements by the apex court as
indicated above.
Section 482 in The Code of Criminal Procedure, 1973 [Entire Act]
Goa Plast (P) Ltd vs Chico Ursula D'Souza on 20 November, 2003
and another v. Medchl Chemicals and
Pharma (P) Ltd. ((2002) 1 SCC 234) and Goa Plast (P)
Ltd. v. Chico Ursula D'souza ((2004) SCC 235) to contend
that the dishonour of a cheque for the reason of stop payment
by the drawer, when his account had sufficient funds to
honour the instrument, would not constitute an offence under
Section 138 of the N.I.Act.
Electronics Trade And Technology ... vs Indian Technologists And Engineers ... on 22 January, 1996
The observations
made in the decisions, Electronics Trade & Technology
Development Corporation Ltd. v. Indian Technologists &
Engineers (Electronics) (P) Ltd. ((1996) 2 SCC 739) and
K.K. Sidharthan v. T.P.Praveena Chandran ((1996) 6
SCC 369), which lend support to the proposition canvassed
by the learned counsel have been found to be not laying down
the law correctly by the apex court.
Goaplast Pvt. Ltd vs Shri Chico Ursula D'Souza & Anr on 7 March, 2003
In Geoplast Pvt. Ltd. v. Chico Ursula D'Souza
(2003 (2) KLT 16 (SC)), the apex court has held in
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unmistakable terms that Section 138 of the N.I.Act is attracted
to cases where the drawee bank is directed to stop payment.
The apex court has held thus: "Once such a cheque is issued
by the drawer, the presumption under Section 139 of the
N.I.Act must follow and merely because the drawer issued
notice to the drawee or to the bank for stoppage of payment, it
will not preclude an action under Section 138 of the N.I.Act
by the drawee or the holder of the cheque in due course" In
the light of the judicial pronouncements as above, it is too late
in the day to canvass the proposition that a stop payment
instruction by the drawer to the bank leading to dishonour of a
cheque would not constitute an offence since that Section
contemplates only of dishonour of the instrument due to
insufficiency of funds or exceeds arrangement.