FIRST LAW

Criminal Appeal - Accused did not appear in the criminal appeal before the High Court - When the accused has not entered appearance in the High Court, the High Court should have issued second notice to the accused or the High Court Legal Services Committee to appoint an advocate or the High Court could have taken the assistance of amicus curiae. When the accused was not represented, without appointing any counsel as amicus curiae to defend the accused, the High Court ought not to have decided the criminal appeal on merits; more so, when the accused had the benefit of the acquittal. The Negotiable Instruments Act, 1881 - Section 138 - The High Court erred in reversing the acquittal without affording any opportunity to the appellant-accused or by appointing an amicus curiae to argue the matter on his behalf.

Negotiable Instruments Act, 1881 – Section 148 – Deposit of minimum of 25% of the fine or compensation awarded by the trial Court for suspension of sentence – Section 148 of the N.I. Act as amended, shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under Section 138 of the N.I. Act, even in a case where the criminal complaints for the offence under Section 138 of the N.I. Act were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018. If such a purposive interpretation is not adopted, in that case, the object and purpose of amendment in Section 148 of the N.I. Act would be frustrated. Question of Law Whether the first appellate court is justified in directing the accused who have been convicted for the offence under Section 138 of the N.I. Act to deposit 25% of the amount of compensation/fine imposed by the trial Court, pending appeals challenging the order of conviction and sentence and while suspending th...

The Negotiable Instruments Act, 1881 - Section 138 - Notice - the omission or error in the notice to mention the nature of the debt or liability, does not render it invalid.

Negotiable Instruments Act, 1881 - Sections 118 and 138 - In the scheme of the NI Act, mere creation of doubt is not sufficient.

The Code of Criminal Procedure, 1973 - Section 482 - The Negotiable Instruments Act, 1881 - Section 138 - Cheques were issued under and in pursuance of the agreement to sell. Though it is well settled that an agreement to sell does not create any interest in immoveable property, it nonetheless constitutes a legally enforceable contract between the parties to it. A payment which is made in pursuance of such an agreement is hence a payment made in pursuance of a duly enforceable debt or liablity for the purposes of Section 138.

The Negotiable Instruments Act, 1881 - Section 138 - the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. [Para 36]

The Negotiable Instruments Act , 1881 - Sections 138 and 145 - The Code of Criminal Procedure, 1973 - Section  143 - Power of Court to try cases summarily - Evidence on affidavit - If the evidence of the witnesses could be by way of affidavit in terms of Section 145 NI Act, the evidence of the accused could also be way of affidavit.

Negotiable Instruments Act, 1881 - Section 138 - Complainant failed to establish the source of funds which he is alleged to have utilized for the disbursal of the loan - Non-disclosure of the facts pertaining to the earlier two cheques, and the steps, if any, taken for recovery was again a material consideration which indicated that there was a doubt in regard to the transaction - the presumption under Section 139 of the Act stood rebutted and that the defence stood probabalised.

Negotiable Instruments Act, 1881 - Sections 138 and 139 - Even though the complainant adduced sufficient evidence on the point of formation of firm, running business and on the point of dissolution of firm, he falls short in proving the case of settlement of accounts and arrival of share amount. Unless that is done, liability cannot be fastened on the accused.

The Negotiable Instruments Act, 1881 - Section 138 - The issuance of cheque gives rise to a presumption of the amount being due and consequently an acknowledgment rendering the plea of debt being time barred inconsequential. It will be for the petitioner to show at the trial that the amount was not due or that the cheque had not been issued to the complainant.

The Negotiable Instruments Act, 1881 - Sections 138 and 145 – Evidence on Affidavit – the personal appearance of the complainant is not necessary for taking cognizance of the offence.

The Negotiable Instruments Act, 1881 - Section 138 - Whether the prosecution based upon second or successive dishonour of the cheque is permissible or not - Held, cheques were presented twice and notices were issued - Complaint filed based on the second statutory notice is not barred.

Criminal P.C. 1973 - Sections 397, 401 and 482 - Negotiable Instruments Act , 1881 - Sections 138 & 147 - Offences to be compoundable -   the Court after being satisfied that the cheque amount with the assessed cost and interest has been paid, can close the proceedings even in absence of the complainant.

Negotiable Instruments Act, 1881 - Section 138 - Whether a complaint would be maintainable, against the company, if the statutory notice is issued only to its Managing Director and is not issued to the company which is maintaining the account from which the subject cheque is issued ?

Negotiable Instruments Act, 1881 - Section 138 – Code of Criminal Procedure Svt. 1989 - Section 561A - Quashing of Complaint - theft of cheques - legal notice on 01.02.2017 demanding an amount of 8, 00,000 - no complaint was filed within stipulated time on said cause of action - cutting and changing the date of 01.02.2017 by 10.03.2017, sent the second notice containing the same contents and again made the same demand for payment of the alleged amount within fifteen days from the receipt of the notice - These are disputed questions of facts, cannot be decided in this petition - These are defenses which petitioner has to prove before court below during trial.

Negotiable Instruments Act, 1881 - Sections 138 and 141 - Offences by companies - Specific proof of resignation of Director - defence taken that they were not directors at the time of offence, is a fact which they have to prove before court below - self written letter sent to boards of directors of firm without any Form 32 of Company Act - these simple letters are not admissible.

1. Darbar Exports v. Bank of India, 2003 (2) SCC (NI) 132 (Delhi) A presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address.

Negotiable Instruments Act, 1881 - Section 131 - Non-liability of banker receiving payment of cheque.

1. Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature.

Negotiable Instruments Act, 1881 -  Section 138 -  failure on the part of the complainant to produce his account statement and absence of entry in accounts maintained by him regarding loan advanced to the accused, does show that there was no material to support the basic facts on which the entire case of the complainant was based. Sufficient material was available on record    whereby the defence of the accused became probable. In such a situation, the presumption under the provisions of the Act ceased to operate and the burden fell upon the complainant to prove his case, which he failed to do by placing on record cogent evidence.