CASELAWS

Ans:  Santan Financers Real Estate Pvt. Ltd. v. Devapa A. Sarvi Another ,Bombay High Court, Dec 10, 2004. The Bombay High Court held that the complainant was not able to discharge the primary burden of showing debt or liability and the cheque was given towards satisfaction of same. The accused has considerably shaken theory of complainant in cross- examination of its witness. The complainant was not justified in presenting the said cheque for payment and upon dishonour to initiate proceeding under section 138 of the Act. The complaint is therefore quashed.

Ans: Nandkishore Mehra v. Sudhir Transport Ltd.Bombay High Court, Apr 24, 2008. The Bombay High Court held that if there is no oral and documentary evidence by complainant about legal liability, section 138 of NI act will not be applicable and the acquittal of accused is just and proper.

Ans:  Pawan Enterprises vs Satish H. Verma on 10 January, 2003 . The Bombay High Court held that the post dated cheque was issued as security and not in discharge of any liability and amount paid in installments was not incorporated in demand notice. The order of acquittal by trial court is just and proper. x x

Ans: Vikash Goyal v. Vijay Kumar, Punjab & Haryana High Court, Nov 10, 2014  The honourable Punjab and Haryana High Court held that when there is contradiction in the statements of complainant and the story put-forth by complainant/applicant was doubtful, the acquittal of accused warrants no interference.

Ans: The principle of Natural Justice is derived from the word ‘Jus Natural’ of the Roman law and it is closely related to Common law as well as moral principles but is not codified. It is a law of nature which is not derived from any statute or constitution. The principle of natural justice is adhered to by all the citizens of civilised State with Supreme significance. In the ancient days of fair practice, at the time when industrial areas ruled with a harsh as well as rigid law to hire and fire, the Supreme court gave its command with principles of natural justice for establishment of social justice and economic statutory protection for the workmen.

Ans: The first one is “Hearing rule” which states that the person or party who is affected by the decision made by the panel of expert members should be given a fair opportunity to express his point of view to defend himself. Secondly, “Bias rule” generally expresses that panel of expert should be biased free while taking the decision. The decision should be given in a free and fair manner which can fulfil the rule of natural justice. And thirdly, “Reasoned Decision” which states that order, decision or judgement of the court which is given by the presiding authorities with a valid as well as reasonable ground.

Ans: Natural justice is a sense of what is wrong and what is right. 

Ans: The honourable Supreme Court held in the case of Ashok Kumar v. Union of India and another-1988-II- LLJ-P.344 that punishment should not be grossly disproportionate to the charge.

Ans:  Union Of India vs Ld. Cdr. Annie Nagaraja on 17 March, 2020 The Union of India in the Ministry of Defence issued a policy letter granting PCs to SSC officers in all the three branches of the Armed Forces. However, the offer was restricted to certain categories and was to operate prospectively for the benefit of future batches inducted on SSCs. The High Court held that the claim of absorption in areas of operation not open for recruitment of women officers could not be sustained being a policy decision. It was further held that the Short Service Commissioned Officers of the Navy who had opted for PC and were not granted PC but instead were granted extension of SSC and were not retired at the time of filing of these Writ Petitions and had attained the age of retirement during the pendency of the present petitions, they shall be offered PC. In similar matters, the Armed Forces Tribunal (AFT) disagreed with the direction of the High Court for the grant of PCs and directed the aut...

Ans:  Union of India (UOI) and Ors Vs. Surendra Pandey, 18.09.2014 . The Respondent on authorised leave started his homeward journey by train. While boarding a bus from Hajipur to join his family in Patna he met with an accident that resulted in a disability, assessed at 20% by the Medical Board concerned. A Court of Inquiry recorded a finding that the accident and the resultant injury suffered by the Respondent were not attributable to military service. The claim for payment of disability pension was declined by the Appellants, according to whom the Respondent was authorised to travel upto Gopalganj-his home station. Any accident involving the Respondent at Hajipur was in no way related to military service or the time requisite for completing the homeward journey which the Respondent was authorised to undertake. The Respondent approached the Armed Forces Tribunal. The Tribunal held that the disability was attributable to military service as the Respondent was on annual leave, henc...

Ans:  Union Of India vs P.S.Gill on 27 November, 2019 The General Court Martial was convened allegations pertaining to the irregularities in procurement of ration, as a result of which the quality of supplies for the troops was compromised. The Respondent filed original application, assailing the validity of the order convening the General Court Martial. The Tribunal held that a prima facie case to proceed against the Respondent by a General Court Martial was not made out. The Tribunal was of the opinion that even if the entirety of evidence of the prosecution was taken to be true, no offence was made out against the Respondent. The Appellants made an attempt to obtain leave to Appeal under Section 31 of the Armed Forces Tribunal Act, 2007 to approach this Court, which was not entertained. The honourable Supreme Court held while dismissing the appeal: (i) Any matter relating to the conditions of service falls within the definition of service matters under Section 3(0) of the Act an...

Ans:  U.O.I. (Through Its Secretary) vs Col. A.D. Nargolkar on 24 October, 2018 In instant case, proceedings were filed by Col. A.D. Nargolkar (now retired) ('Officer') who was commissioned in Army. Officer had received a legal notice from Mr. Pundir on August 2, 2007 alleging harassment/ mental torture etc., unwarranted telephone calls to him as well as his family members. Officer had denied these allegations. As per UOI, when Officer came to know about convening of Court of Inquiry (COI) against him, he tendered a written apology. COI was held and it found the Officer blameworthy for which he was awarded 'Severe Displeasure (Recordable)'. Award of 'Severe Displeasure (Recordable)' to Officer was construed as 'drop in performance' resulting in cancellation of his earlier promotion order. As a consequence, Officer was not empanelled for rank of Brigadier. Officer approached Armed Forces Tribunal (AFT) by filing two Original Applications (OAS). AFT dismis...

Ans: Chief Of The Army Staff And Others vs Major Dharam Pal Kukrety on 21 March, 1985 The facts which have given rise to this Appeal lie in a narrow compass. The Respondent is a permanent commissioned officer of the Indian Army holding the substantive rank of Captain and the acting rank of Major. In November 1975, he was posted in the Army School of Mechanical Transport, Faizabad. As a result of certain incidents which are alleged to have taken place on November 6 and 7, 1975, the Respondent was tried by a general court-martial on four charges. It is unnecessary to reproduce the charges made against the Respondent. The charge-sheet was dated January 20, 1976, and was issued by the Commandant, Ordinance Depot, Fort Allahabad. On January 24, 1976, the Respondent was ordered to be tried by a general court-martial. The Respondent pleaded not guilty and his trial took place at Lucknow before a general court-martial consisting of one Brigadier, two Majors and two Captains. Both the prosecuti...

Ans: The legal maxim ‘Ubi eadem ratio ibi idem jus et de similibus idem est judicium’ means that when there is the same reason, then the law is the same, and the same judgement should be rendered as to similar things. Hence , the attached case laws are for the same issue, and thus the acquittal of the accused is just and proper.  

Ans: Actus legis nemini facit injuriam is a well-established Latin maxim that signifies ‘The act of the law does injury to no one. ' The acquittal of an accused is just and proper in absence of legal debt and documentary evidences. 

Ans: The legal maxim 'Actus non facit reum nisi mens sit rea' says that any act must be done with a guilty mind in order to be criminal in nature and an accused issued cheque for friendly loan and hence he has not guilty mind behind his act and thus, the act can not be criminal in nature.

Ans: Sayeeda Iqbal Vakil v. Javed Abdul Latif Shaikh Bombay High Court Apr 17, 2008 The honourable bombay high court held that the absence of documentary evidence to substantiate the factum of advance of loan will not make section 138 applicable and hence the appeal is rejected as well as acquittal of an accused is just and proper. x x

Ans:  Saj Properties Pvt. Ltd. vs Virender Dagar on 9 March, 2015 An accused has been able to rebut presumption under section 118 and Section 139 of NI Act and it was established by an accused that cheque had been issued as a security cheque in favour of complainant. The Delhi High Court held that  an averment of petitioner in complaint is bald and devoid of any particulars as to how legally recoverable debt had arisen and thus acquittal was upheld. x

Ans:  Smt. Manjula G vs Smt. Manjula B T on 27 March, 2018 The honourable Karnataka High Court held that when accused has clearly established her case as per law stating that cheque has been misused by complainant and complainant has failed to prove the guilt of an accused, the finding of acquittal by trial court is just and proper.

Ans: The significant point in the citation of  People'S Union For Civil vs Union Of India on 16 December, 2003 is that no innocent person should be punished. 

Ans:  In case of Shafikkur Rahman vs The State Rep. By on 31 March, 2022, the honourable Madras High Court held that 1000 culprits can escape, but, one innocent person should not be punished.  x

Ans: In case of Popular Muthiah v. State, (2006) 7 SCC 296, the honourable Supreme Court held that 1000 culprits can escape, but, one innocent person should not be punished.  So, without evidence and without any documentary proof, it is pellucid that the charges framed on the accussed are incompetent and against the law. The accused is innocent and must be acquitted. x

Ans: The literal meaning of the legal maxim, Prior tempore potior iure, is that it is a legal principle that older laws take precedence over newer ones but if the laws are required to be altered,  it is must to alter the law.  x

Ans: ' Actio personalis moritur cum persona ' means a personal right of action dies with the person. In the case of Nurani Jamal & Ors v. Naran Srinivasa Rao & Ors (1993), the applicability of this maxim in the context of motor vehicle accidents was discussed in front of the Andhra Pradesh High Court. The single bench judge was confronted with questions like whether the claims for the damages survive even after the death or injury during a motor vehicle accident as well as if legal representatives can take any action if there happens to be a loss to the property of the deceased. The Court stated that the actions for damage claiming for personal injuries shall not die with the deceased person. x

Ans: Section 259 of Cr.P.C mentions about the non appearance or death of complainant.  When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant-cases and may recall any witness who may have been examined. So, according to the Code of Criminal Procedure, 1973, u/s. 256, 302 in case of non-appearance or death of the complainant, the legal heir of the deceased complainant continues to proceed in the cheque bounce case u/s.138 of NI Act. x

Ans:  The Magistrate under Section 249 has the power to discharge a case where the complainant is absent. The discharge under Section 249, however, is hedged with the condition that the offence may be lawfully compounded or is not a cognizable offence.  x

Ans: Section 256 of Cr.P.C  mentions about the non-appearance or death of complainant.  According to section 256 of Cr.P.C,   the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. 

Ans: Section 302 of Cr.P.C mentions about the p ermission to conduct prosecution. Following persons can conduct the prosecution with the permission of magistrate:  1. Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. 2. Any person conducting the prosecution may do so personally or by a pleader. x

Ans: If the complainant dies during the pendency of the trial of the cheque bounce case under section 138 of the NI Act, the legal heir of a complainant can apply to  continue proceeding as a representative. The Court can permit such type of application under section 302 of Crpc. x

Ans:  Sasseriyil Joseph vs Devassia on 22 September, 2000. The Kerela High Court held that Section 138 of negotiable instrument act is attracted only if there is legally recoverable debt and it can not be said that the time barred debt is legally enforceable debt. For the reasons stated above, the Kerela High Court finds no reason to interfere with the order of acquittal passed by the learned Additional Sessions Judge.  The Kerela High Court sees no infirmity in the judgment of the lower Court. This appeal is groundless and is liable to be dismissed.

Ans:  Sunil Kumar V. Ram Dass, 2014 The High Court of Punjab and Haryana held that absence of any documentary proof for advancement of loan to accused and failure of complainant to prove the existence of any legal debt or liability which is one of the necessary ingredients of Section 138 of NI act will uphold the acquittal of an accused. x x

Ans: Smt.Pushpa Devi vs Smt. Sushila on 14 May, 2018 The Delhi High Court held if the case of petitioner is doubtful pertaining to advancement of loan and no document was prepared regarding transaction and there was no witness who saw the handling over the money to respondent or issuance of cheque by an accused , the acquittal of an accused is just and proper.

Ans:  U.E Coop. Urban T&C; Society Ltd ... vs Chaman Singh on 9 January, 2015 The accused had clearly come up with the defence that the complainant had got his signatures on the blank cheques and other papers but no loan amount was disbursed to him. Therefore, it was mandatory for the complainant to produce the record to show the liability and the fact that loan was given of this amount, on this date and how many installments the accused had paid and what amount remains due payable regarding which the cheque was issued. In the absence of this evidence, the accused has rebutted the presumption that cheque is not issued for legally enforceable debt. The High Court of Punjab and Haryana at Chandigarh held when the accused has rebutted the presumption that cheque is not issued for legally enforceable debt, no ground made out to grant permission for special leave to appeal.

Ans:  Somnath Biswas vs The State Of Jharkhand on 7 February, 2018.  The complainant  failed to state clearly the date and time of the friendly loan or any documentary evidence of such friendly loan having been advanced to the accused. The High Court of Jharkhand stated when the complainant failed to state clearly the date and time of friendly loan or documentary evidence of such friendly loan or documentary evidence of such friendly loan having been advanced to the accused , the acquittal of accused warrants no interference. x

Ans: Raj Kumar & Associates Pvt. Ltd. vs Hans Raj on 17 March, 2015 In the case of Raj Kumar & Associates Pvt. Ltd. vs Hans Raj on 17 March, 2015, the complainant has a private registered company. The company must be maintaining its accounts as per the accounting standards, but no account books were produced by the complainant company to prove that the complainant's company gave an amount of Rs.30 Lacs to the accused on 04.06.10. If the complainant had given the loan of Rs.30 Lacs to the accused, it must have been shown the same in the account books i.e. Balance Sheet for the year 2006 up to till date. Therefore, an adverse inference can be drawn u/s 114(g) of Indian Evidence Act that account books are unfavourable to the complainant. The accused had been able to establish that the complainant had filed the complaint on a false factual basis by claiming that the cheque in question had been issued simultaneously while issuing the receipt Ex. CW-1/1 dated 04.02.2006. The...

Ans: In the case of Shri. Nagendra vs Sri. R J Rajegowda on 5 February, 2020, the complainant has stated that he approached the accused on 05.08.2010 to repay the said amount and on the same day, the accused issued the cheque in question for a sum of Rs.2,19,750/- (Rupees Two Lakhs Nineteen Thousand Seven Hundred and Fifty only). It is not forthcoming as to what was the amount due as on 05.08.2010 towards the hand loan taken by the accused. It is also the case of the complainant that the cash was handed over to the accused in the month of January 2008 at one Siddartha Hotel in the presence of two persons viz., Mr.Sridhar and Somashekar. The said two persons are not examined by the complainant. The complainant has stated that out of the loan obtained from Co-Operative Bank, he advanced a sum of Rs.1,50,000/- to the accused. The complainant has not produced any documents to show that he had obtained loan from Co-Operative Bank, out of which he lent a sum of Rs.1,50,000/- to the accus...

Ans:    J. Daniel vs The State Of Kerala And Anr. on 28 July, 2005   The learned counsel submits that the finding of the trial Court that Ext.P1 cheque issued by the 2nd respondent was not a legally enforceable debt or other liability is not correct. The learned Kerela high court held that for the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability". A reading of the above provision would indicate that the execution of the cheque is not sufficient to constitute an offence punishable under Section 138 of the Act, unless it is proved that the debt or other liability is a legally enforceable one.

Ans:   Santhi.C. vs Mary Sherly on 30 June, 2011 The learned Magistrate of Kerela High court held that "execution" is different from "issuance" of cheque. "Issue" means, to "give something to somebody". Issuance of cheque does not mean drawing of cheque. The issuance and execution are different acts. Proof of issuance or giving of cheque by accused to complainant alone will not suffice to constitute offence under Section 138 of the Act.  

Ans:  Ramdas v. Krishnanand Supreme Court Of India Jul 23, 2014 The honourable Supreme Court held that looking at the corroborative evidence adduced by the defence witnesses and more particularly, in the absence of any material evidence in support of the claim of the respondent complainant, the acquittal is just and proper. When there is no material in support of claim of complainant and the evidence of defence witnesses fully corroborates the version of accused, the acquittal is just and proper.

Ans: Bombay High Court Bhausaheb Deorao Patil Shetkari vs State Of Maharashtra Thr. Pso ... on 21 September, 2017 Bench: R. B. Deo The learned Magistrate has considered the entire evidence on record and the appreciation of evidence is unexceptionable. The finding recorded that it is not proved that the cheque was issued towards existing liability or debt, is the only finding which could have been recorded in the teeth of the evidence on record. The learned Magistrate has recorded a finding of fact that the cheque was issued as security and more importantly that the accounts were not settled, and existing liability or debt is not proved. 

Ans: The legal term in pari delicto is most commonly used in situations when both parties to a civil lawsuit are equally at fault for the wrong doing. The pari delicto means in equal fault or wrong. It basically means if both the parties are equally to blame , the court will side with neither party. x

Ans:  Virender Singh vs Laxmi Narain And Anr. on 1 November, 2006, Equivalent citations: I (2007) BC 530, 2007 CriLJ 2262 , JUDGMENT Badar Durrez Ahmed, J., Delhi High Court Doctrine or rule of pari delicto is the embodiment of the principle that the courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud.

Ans: Sami Labs Limited V. M.V Joseph : 2019 ILR( Karn) 1953: 2019 (2) KCCR 1215: 2019 ACD 290: 2019 LRC Online 511(Karn) The High Court of Karnataka  held that when any sum issued in the cheque is for an higher amount than the outstanding and if that excess amount is not towards any interest,  cost , penalty,  etc., but remains explained,  then section 138 of the act can not be said to be applicable. x

Ans:  Indra Cidambaram( Mrs.) V. Quick Fotos: (2015) ACD 812 : (2016) 1 NIJ 263: (2015) 2 MadWN(Cri) 75: 2015 LRC Online 935 (Mad) . When the complainant failed to prove the passing of consideration and presumption rebutted by accused through various exhibits,  the acquittal of accused warrants no interference. The honourable Madras High Court held the fact that no particulars were given pertaining to the date on which the amount was advanced, the date on which the cheque was given, the non-explanation of the details regarding notice sent by the accused in the complaint though the same was received by the complainant much earlier to the filing of the complaint and the fact that the relationship between the family of the complainant and the family of the respondent got strained even prior to the alleged issuance of cheque by the accused that the accused owed money to the chit conducted by the complainant as well as was paying the amount till March, 2011 and no document was obta...

Ans:  Chhabra Fabrics Private Limited v/s Bhagwan Dass, Proprietor of Dhingra Handicrafts     Crl. Appeal No. 1772 of 2002     Decided On, 05 August 2014     At, High Court of Punjab and Haryana From the evidence brought on record, it is entirely clear that the blank cheque was handed over to the complainant as a security cheque as well as was not meant for enforcement of a debt. The objective of Section 138 of the Act is to avoid malignant trade practice of indiscriminately issuing cheques without sufficient funds. The facts as well as circumstances of the present case of this nature cannot be construed and brought within the gamut attracting the provisions of Section 138 of the Act.   In view of the foregoing discussion, while dismissing the present appeal, the Punjab and Haryana High Court upheld the findings recorded by the Additional Chief Judicial Magistrate, Panipat vide his judgment dated 01/08/2001 in acquitting the accused. x x x

Ans: R shekheran V. N. Krishnanoorthy : (2017) 2 DCR 197: (2017) ACD 148: 2016 LRC Online 1364(MAD) When the complainant has failed to prove his complaint,   then passing acquittal is just and proper. It is viewed in that perspective that the judgment of 'Acquittal' passed by the trial Court in C.C.No.15 of 2003 dated 20.11.2009 in the considered opinion of this Court is just, a valid, correct and legally tenable one, especially, in the absence of material irregularities or patent illegalities. Resultantly, the Criminal Appeal fails.  In fine, the Criminal Appeal is dismissed and the judgment of the trial Court in C.C.No.15 of 2003 dated 20.11.2009 is hereby affirmed by this Court for the reasons assigned in the Appeal.

Ans:  Leena Kataria vs State & Anr on 16 January, 2020 The Delhi High Court held that in conformity with this case, following the law laid down in the above mentioned judgments as well as also the law of preponderance of probability which runs common through the judgments relied upon by the accused/respondent titled as Vijay vs. Laxman & Anr: 1 (2003) BC 743 (SC); Shobha vs. Gajanan: 1 (2003) BC 101 of Hon'ble Bombay High Court; Ashok Leyland Finance Ltd vs. State of Rajasthan &Anr.: 1 (2013) BC 433 of Hon'ble Rajasthan High Court; Kanahiya Ghamandi Lai vs. Subhash: 1 (2013) BC 391 of Hon'ble Rajasthan High Court; and Sanjay Mishra vs. Ms. Kanishka Kapoor: AIR 2009 (NOC) 2327 (Bom)=2009 (4) AIR Bom R 436, the respondent has been successful in rebutting the presumptions in favour of the petitioner. Now, when accused/respondent has been successful in rebutting the presumptions U/s 118 (a) and 139 of N.I. Act, the burden shifts upon the petitioner to manifest her c...

Ans:  Ghanshyamdas Lalchand Chandak vs Sheikh Hamid Sheikh Gulab & Anr on 9 January, 2018. Since an accused succeeded in rebutting the statutory presumption, the burden would be shifted on complainant to prove the existence of the debt or liability and the acquittal of an accused warrants no interference.

Ans: Mukund Vasudev Naik V. Deepak Shamsundar Naik, 2015, Bombay High Court. It is well settled that the standard of proof, for the accused, is preponderance of probabilities as well as inference of preponderance of probabilities can be drawn not only from the materials on record, but also by reference to the circumstances upon which the accused relies. The safeguars of an accused appear to be genuine. It is merely because the accused did not respond to the statutory notice as well as did not state anything specifically in his statement under section 313 of Cr. P.C. and did not step into the witness box, that would not mean that an accused has failed to discharge or release the burden.

Ans: In accordance with the citation of Ms Anu Tripathi V.  Mr. Anil Kumar Gupta, Bombay High Court, despite there being legal presumptions which go with the issue of a Negotiable Instrument, such presumption, are rebuttable. The burden of proof upon an accused is much lesser than the burden which a complainant is required to discharge.

Ans: In the citation of Josco Agencies v. K.P. Shukkoor, Kerala High Court the complainant can avail the benefit of the presumption under Sections 118 as well as 113 of the Negotiable Instruments Act only when the complainant has proved the essential facts for availing such a presumption. What the complainant has to prove in a proceeding under Section 138 NI Act is not just a liability but it must be a legally enforceable liability. The complainant does not know when goods were bought by the accused and what goods were bought by  him, for what amount goods were bought by the accused, and he does not know anything about the cheque in question. Thus, the complaint made by complainant is valueless.  The honourable court find that the judgment of conviction made by the trial court was appropriately reversed by the appellate court, and that the accused was rightly found not guilty by the appellate court.  Consequently,  the appeal is dismissed.  The honourable court ...

Ans: In the citation of Shiv Dial Singh vs Jitender Kumar & Anr on 3 March, 2015, the Punjab and Haryana High Court held that when all the facts goes to show that complainant has not approached the court with clean hands and his conduct is not that of a prudent man, acquittal of an accused is just and proper. First of all , the applicant or complainant was duty bound to exhibit that he had collected the cheque amount from his known source of income i.e. Agriculture. Admittedly, he did not fetch any evidence, whatsoever, on record of the case so as to show, even prima facie, that he has drawn the said income of Rs.2,50,000/- from his agricultural land. During the course of hearing, when a pointed question was put to learned counsel for the applicant-complainant , he had no answer as well as rightly so, because it was a matter of record. Applicant did not produce any evidence in this regard for the reasons best known to him. In fact, he was proceeding on a presumption that the comple...

Ans: In the citation of Shankar Jaganath Mane vs Sikkandar Mohammed Bidiwala on 2 March, 2020, the Bombay High Court held that the Complainant was economical with truth and came with tainted hands and any party coming to court should come with clean hands and speak the truth. On the ground that the complainant did not come with clean hands to the court,  the present appeal requires to be dismissed.

Ans: In accordance with the citation of P.N. Piplani V. Shyam Lal ,2014, the Punjab and Haryana High Court held that when no document has been scribed with regard to advancement of loan and legal notice has not been served as per law, the acquittal of accused is just and proper  The complainant in his cross-examination admitted that no account books have been maintained by him as well as no document has been scribed with regard to advancement of loan.

Ans: Josco Agencies v. K.P. Shukkoor Kerala High Court Jul 25, 2017 The complainant can avail of  the advantage of the presumption under Sections 118 and 113 of the Negotiable Instruments Act only when the complainant has proved the significant facts for availing such a presumption. What the complainant has to prove in a proceeding under Section 138 NI Act is not just a liability. It must be a legally enforcible liability. The complainant does not know when goods were purchased by the accused, what goods were purchased by the him, for what amount goods were purchased by the accused, and he does not know anything about the cheque in question. Thus, the evidence given by complainant is valueless. The Kerela High Court held that the judgment of conviction made by the trial court was appropriately reversed by the appellate court, and that the accused was rightly found not guilty by the appellate court.

Ans: As per Maharashtra Money-Lending (Regulation) Act 2014: Section 39: Whoever carries on the business of money-lending without obtaining a valid licence, shall, on conviction, be punished with imprisonment of either description for a term which may extend to five years or with fine which may extend to fifty thousand rupees or with both. x

Rathish Babu Unnikrishnan V. The State (Govt. of NCT of Delhi) & Anr. Respondent(s) on 26th April,  2022. In this case, the company AAT Academy issued its shares to Ratish Babu and later on company agreed to take its shares back and issued cheque to Ratish Babu. The cheques got bounced and Ratish Babu sent notice to company and since the company did not pay the amount in 15 days, the case under section 138 of NI was filed against the company.  The company told that the Section 138 of NI must have legal debt in accordance with section 139 of NI act and it is not the legal debt of company to sell shares to anyone.  The honourable Supreme court considered the case of  M/s M.M.T.C Ltd and Anrs Vs M/s Medchl Ltd and Pharma(P) Ltd & Anr. (2001), and according to it , the provision  of section 139 of negotiable instrument act will be considered at the stage of trial and not at pre-trial stage in which summon was issued . The honourable Supreme Court held that t...

Ans: In this case, the honourable Supreme Court set aside the order of high court because the complainant was unable to prove his financial capability to lend money through his ITR. x

Ans: Cheque bounce is  familiar financial offence  and it can bring civil as well as criminal charges against accused. Whether incident of cheque bounce shall fall under criminal or civil matter is a tricky question. Under what condition, a civil suit and a criminal suit are filed for cheque bounce? Civil Suit: Most often, a civil suit when filed in the case of dishonour of cheque is for the recovery of the money, without dragging  or attracting the defaulter towards punishment. Criminal case:  If the drawer is found guilty as a wilful defaulter, he would be charged with a jail term of two years or a fine which is twice the cheque amount, or both. The defaulter is also given an opportunity to appeal to the sessions court within a month of the date of the judgment of the lower court. x

Ans: In the citation of K&Co. v. Paam Pharmaceuticals (Delhi) Ltd.: 2018 (1) LRC 420: 2018 LRC Online 25(Del). 247, the Delhi District court held that when the petitioner has no evidence to prove its case, then acquittal is just and proper. The complainant did not lead any evidence in his post summoning evidence despite numerous opportunities from 20.04.2005 to 25.02.2014. Hence, there is no any incriminating evidence against the accused persons.

Ans: In Manishbhai Bharatbhai Shah v. State of Gujarat, (2008) 1 GLR 392, the Gujarat High Court has held that prosecution under Section 138 of NIA shall not be barred only because the money lender was unable to produce a money-lender’s license. x

Ans: The Punjab & Haryana High Court, deciding a case under the Punjab Registration of Money-Lender’s Act, 1938, Narsi Dass v. Surender, 2015 (1) RCR (Civil) 108, held that a complainant or money-lender could not start prosecution under Section 138 of the Negotiable Instruments Act if he did not hold a valid money-lender’s license and Section 138 of negotiable instrument act,  1881 would not be applicable. 

Ans: In Supreme Court of India  Criminal Appellate Jurisdiction  Criminal Appeal no. 1492 of 2022 Dashrathbhai Trikambhai Patel - Appellant  Vs. Hitesh Mahendrabhai Patel & Anr - Respondent The cheque was issued for the amount of Rs 20 lakhs. The payment was done in part before the presentation of cheque in bank. In this judgement, it was mentioned that 1. If the part payment is performed from any cheque, the total amount will not be legally forceable debt . 2.  It is necessary to endorse the part payment under section 56 of negotiable instrument act on that instrument. If it is not so, the section 138 of negotiable instrument act will not be applicable. x

Ans: The learned Gujrat High Court held that the wife is required to live in a dignity as well as standard of life of her husband. That, if wife is earning then it may not be a reason to reject an application for maintenance. In support of her arguments, the learned advocate for the applicants has placed reliance upon the judgment passed by Hon'ble Apex Court in Criminal Appeal Nos. 125-126 of 2017 as well as judgment passed by Hon'ble Karnataka High Court in RPFC 501/203 c/w 542/2013 wherein it is held that if the wife is capable for earning or whether she is actually earning are two different requirements. Merely because the wife is capable of earning has not the sufficient reasons to reduce the maintenance to the wife. x

Ans: Appellant :- Gaurav Bansal Alias Kumar Gaurav Bansal  Respondent :- Smt. Sakshi Garg The High Court of Allahabad held that monthly income of wife was around Rs. 15000/- to 20,000/- but still the court below found that in order to live a life of husband's status, atleast Rs. 15,000/- maintenance should have been permitted to wife and that is how the impugned order has been passed.  The Learned counsel for the appellant contended that since respondent-wife was an earning member, therefore, no amount of maintenance should have been permitted to her but in order to maintain a life with the status of her husband, the amount of maintenance awarded cannot be said to be excessive, unjust or unreasonable. There was no procedural or otherwise error shown in the impugned order. x

Ans: Section 139 sets the presumption in favour of the drawee that the cheque received by him is for the discharge of any debt or liability of the drawer. This discharge of debt can be in whole or in parts. Here, the court shall presume that drawer has taken any debt from the drawer.  Section 140 states that the drawer cannot take this defence of not knowing that the cheque may be dishonoured on presentation.  The procedure for taking cognizance of an offence under Section 138 is present in Section 142. Whereas, Section 147 makes the offences under the Act compoundable.  Section 143 of negotiable instrument act deals with the trial of cases under Section 138 which is summary proceedings notwithstanding anything contained in the Criminal Procedure Code, 1973 (CrPC).  Section 143 was added by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002. Section 143(3) specifically mentions that efforts must be taken to complete the trial proceedings wi...

Ans: The Negotiable Instrument Act, 1881 (N.I. Act) is the legislation pertaining to the dishonour of cheques. As per the Act, the meaning of cheque for the purpose of the Act has been defined under Section 6 as a bill of exchange which is drawn on a specified banker and payable on demand. 

Ans: As per Section 147 of negotiable instrument act, the offences under this act are compoundable and there is no bar on parties to compound the offence.

Ans:  Section 145 of negotiable instrument act mentions about evidence on affidavit. As pwr language of bare act,  1. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. It is mentioned here that any evidence given by complainant on affidavit.  2. The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. The court can examine as well as can issue summon on the basis of evidence on afdidavit. x x

Ans: When the drawer refuses to accept guiltness and where the Court finds it fit, the court can pass an order of interim compensation and complainant will have to pay the interim compensation within 60 days.

Ans: Firstly all offences under this code shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate as well as the provisions of sections 262 to 265 (both inclusive) of the said code shall, as far as may be, will be applied to such trials where the imprisonment for a term not exceeding one year as well as an amount of fine exceeding five thousand rupees but in cases where the Magistrate can pass a sentence of imprisonment for a term exceeding one year or the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceeded to hear or rehear the case in the manner provided by the said code of Cr.P.C.

Ans: Section 142 of the Negotiable Instruments Act, 1881 states the cognizance of offences. The Section 142 of Negotiable instrument states that without regarding anything contained in the CPC, 1973. This section states that no Court shall take any cognizance of offence which is regarded punishable under the provisions mentioned in Section 138 of the Negotiable Instruments Act, 1881  unless the complaint which is in writing made by the holder of the cheque.  It states that the complaint which is made within 30 days of the date on which the cause of such action arises of dishonour of cheque under the provisions contained in Section 138 of the Negotiable Instruments Act, 1881. It further states that no Court which is inferior to the Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence which is punishable under the provisions laid down under Section 138 of the Negotiable Instruments Act, 1881. x

Ans: Section 141 of negotiable Instrument act mentions about the offences by companies. If the person commits an offence under section 138 of negotiable Instrument act and is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence as well as shall be liable to be proceeded against and punished accordingly provided that nothing contained in this sub-section (1) shall render any person liable to punishment if he proves that the offence was committed without  knowledge of drawer, or that he had exercised all due diligence to prevent the commission of such offence. For the purposes of this section,— (a) “company” means any body corporate as well as includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.]

Ans: The drawer can not say that even if he had given cheque to holder but he didn't know that cheque would get bounced due to insufficient balance or any other reason.  Such type of defence is not allowed in section 138 of negotiable Instrument act by prosecution. If the cheque was issued in due diligence,  the drawer would be liable but he can take the defence.

Ans: Section 139 of negotiable instrument act mentions about presumption in favour of holder. The court shall presume that the holder has given legal debt to drawer until the drawer disproves it. x

Ans:  According to section 59 of Indian Contract Act, 1872, when a debtor makes a payment with either express and implied intimation that the payment is to be applied to discharge of some particular debt, the payment if accepted and must be applied accordingly. Scenario: Azam owes Babur among other debts Rs 1000 related to invoice #27 which falls due on first June. 1. Rs 300 ( invoice #5 ) 2. Rs 567 ( invoice # 8) 3. Rs 853 (Invoice # 19) 4. Rs 1000 (Invoice # 27) He owes Babur no other debt of that amount.  On the first June, Azam pays to Babur the amount of Rs 1000. Appropriation: The payment is to be applied to the discharge of invoice # 27.

Ans: According to section 59 of Indian Contract Act, 1872, when a debtor makes a payment with either express and implied intimation that the payment is to be applied to discharge of some particular debt, the payment if accepted and must be applied accordingly. Scenario: Azam owes to Babar, among other debts; the sum of Rs 567 and there are four debts i.e., Rs 300, Rs 567, Rs 853 and Rs 950.  Babar writes to Azam and demands payment of the sum of Rs 567. Azam sends to Babur sum of Rs 567. Appropriation: The payment is applied to the discharge of debt of which Babur had demanded .

Ans: The summary of rules to complete the debt(in order) are as follows:  1. Indicated by debtor: The payment of debt to invoice as indicated by debtor. 2. Not indicated by debtor:  If the payment to debt is not indicated by the debtor, the amount will be appropriated by creditor ( except disputed debt ).  3. Neither party made appropriation: If the payment to the debt is not indicated by any debtor or creditor, the debt will be distributed in order of time. 4. Time of two or more debts is same: If the time of two of more debts is same, the debt will be distributed proportionately. 5.  Principal and Interest:  First the interest will be paid and then the principal will be paid.

Ans: An appropriation of payment to a particular debt or debts where a debtor owes several distinct debts to one person. Illustration: If there are several outstanding debts, i.e., Rs 300 for invoice #5, Rs 567 for invoice #8, Rs 853 for invoice #19 and Rs 1000 for invoice # 27. The payment from debtor to creditor is Rs 200. The question arises here is which debt would be cleared by the debtor. The rules of appropriation must be applied here.

Ans: In the citation of Lovedeep Singh v. Gurpreet Kaur [CRR(F)-314-2022], the Punjab and Haryana High Court has observed that a wife cannot be denied maintenance on the grounds of being well-educated and that a husband is legally and morally responsible to look after his wife and children. 

A Notice on behalf of an Individual by an Advocate regarding Dishonour of Cheque (To be sent within thirty days of the receipt of information from the bank regarding the return of the cheque unpaid)  REGISTERED AD. / U.P.C. From .....................................  ......................................  To ......................................  ....................................  Dear Sir, Under instructions and authority from my client Shri ................................................................. R/o....................... I serve upon you the following notice:- 1. That my aforesaid client is dealing in the sale of ........................... goods required for .......................... purpose and you have been purchasing the goods on credit from my client from time to time.  2. That my client has been maintaining an open and running account in your name in his regular course of business and as per the books of my client, a sum of Rs ........