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1 - 10 of 24 (0.42 seconds)Section 139 in The Negotiable Instruments Act, 1881 [Entire Act]
The Code of Criminal Procedure, 1973
Section 143 in The Negotiable Instruments Act, 1881 [Entire Act]
The Negotiable Instruments Act, 1881
M/S M. M. T. C. Ltd. & Anr vs M/S Medchl Chemicals & Pharma P. Ltd. & ... on 19 November, 2001
12-C. Further, as per the expression of the Apex Court in RANGAPPA vs. MOHAN
(3-Judges Bench) paras-9 to 15 referring to Goa Plast's case (supra), KRISHNA
JANARDHAN BHAT (supra) by distinguishing at para-14 saying the observation in
KRISHNA JANARDHAN BHAT (supra) of the presumption mandated by Section
139 does not indeed include the existence of a legally enforceable debt or liability is
not correct, though in other respects correctness of the decision does not in any way
cause doubted; by also referring to HITEN P. DALAL v. BRATINDRANATH
BANERJEE holding at paras-22 and 23 therein of the obligation on the part of the
Court to raise the presumption under 138, 139 and 118 of the N.I. Act, in every case
where the factual basis for raising the presumption has been established since
introduces an exception to the general rule as to the burden of proof in criminal
cases and shifts the onus on to the accused, as a presumption of law distinguished
from a presumption of fact as part of rules of evidence and no way in conflict with
presumption of innocence and the proof by prosecution against the accused beyond
reasonable doubt, but for saying to rebut the accused can discharge the burden
showing reasonable probability of non-existence of the presumption of fact and to
that proposition, the earlier expression in BHARAT BARREL & DRUM
MANUFACTURING COMPANY v. AMIN CHAND PYARELAL para-12 showing the
burden on the accused is to bring on record by preponderance of probability either
direct evidence or by referring to circumstances upon which he relies, rather than
bare denial of the passing of the consideration; apparently that does not appear to
be of any defence, to get the benefit in discharge of the onus against, also held
referring the M.M.T.C. LTD. AND ANOTHER v. MEDCHL CHEMICALS & PHARMA
(P) LTD that where the accused able to show justification of stop payment letter
even from funds are there, but no existence of debt or liability at the time of
presentation of cheque for encashment to say no offence under Section 138 of the
N.I. Act made out in discharge of the burden.
Mallavarapu Kasivisweswara Rao vs Thadikonda Ramulu Firm & Ors on 16 May, 2008
It was concluded referring to the above,
including of MALLAVARAPU KASIVISWESWARA RAO v. THADIKONDA
RAMULU FIRM & ORS paras-14 and 15 that the initial presumption lays in favour of
the complainant and Section 139 is an example of a reverse onus clause, which has
been included in furtherance of the legitimate objection of improving the credibility of
the negotiable instruments. While Section 138 specifies a strong criminal remedy in
relation to the dishonour of cheques, the rebuttable presumption under Section 139
is a device to prevent undue delay in the course of litigation. Bouncing of a cheque
is largely in the nature of a civil wrong whose impact is usually confined to the
private parties involved in commercial transactions and the test of proportionality
should guide the construction and interpretation of reverse onus clause and the
accused cannot be expected to discharge an unduly high standard or proof and in
the absence of compelling justifications, reverse onus clauses usually impose an
evidentiary burden and not a persuasive burden to discharge by preponderance of
probabilities by raising creation of doubt about the existence of a legally enforceable
debt or liability to fail the prosecution and for that the accused can rely on the
material submitted by the complainant also in order to raise such a defence and he
may not need to adduce any evidence of his own.
Somnath Sarkar vs Utpal Basu Mallick & Anr on 7 October, 2013
The accused who is 2nd respondent to the appeal present and heard on
sentence as Ex.P1--cheque is for Rs.1,49,623/- and the case tried even as a
summons case, from the amendment to the N.I Act in 2002-03 w.e.f.,
06.02.2013 (Amended Act 55 of 2002) which mandates the trial in summary
procedure and convert if necessary as summons procedure and that was not
questioned as irregular much less any prejudice caused thereby, and this
provision speaks on conviction, for sentence of imprisonment not exceeding
one year and an amount of fine exceeding Rs.5,000/- (without any limit with
non-obstante clause irrespective of the provisions of Cr.P.C) and the bar under
Section 29 of Cr.P.C of outer limit of fine of Rs.10,000/- (amended and
substituted for Rs.5,000/- by the Cr.P.C amendment Act of 2006) as was
earlier, after this provision Section 143 introduced thereby of no application. It
was also held by the Apex Court in SOMNATH SARKA VS. UTPAL BASU
MALLICK that the Act not contemplated grant of compensation but envisages
imposition of fine not exceeding twice the amount of dishonoured cheque and
out of said fine amount, the complainant be compensated under Section 357
Cr.P.C. and that 'unlike for other forms of crime, the punishment here (insofar
as the complainant is concerned) is not a means of seeking retribution, but is
more a means to ensure payment of money. The complainant's interest lies
primarily in recovering the money rather than seeing the drawer of the cheque
in jail. The threat of jail is only a mode to ensure recovery. As against the
accused who is willing to undergo a jail term, there is little available as remedy
for the holder of the cheque."
Section 118 in The Negotiable Instruments Act, 1881 [Entire Act]
M/S Kumar Exports vs M/S Sharma Carpets on 16 December, 2008
12-B. The presumption that further applied among clauses (a) to (g) of Section 118
of N.I. Act also, like the presumption under Section 139 of the Act, as per Section 4
of the Evidence Act, is a rebuttable presumption for which the burden is on the
accused, however, to rebut the presumption if a case is made out by accused either
by pointing out from the case of the complainant including very documents and
cross-examination or by examining any person and need not be always by coming
to witness box vide decision in KUMAR EXPORTS PVT. LTD. V. SHARMA
CARPETS.