The Tax Publishers 2019 TaxPub(CL) 0820 (HP-HC)

NEGOTIABLE INSTRUMENTS ACT, 1881,

Section 138

Though there were contradictions with regard to number of cartons which were carried through span of supplier, even there were huge variations with respect to charges of carriage, the supplier failed to prove existence of amount claimed in complaint, which was much higher, thus, Magistrate rightly rejected the complaint under section 138.

Dishonour of cheque for insufficiency, etc. of funds in account - Appeal against rejection of complaint - Contradictions with regard to number of cartons and charges of carriage - Supplier failed to prove existence of higher amount

Drawer issued cheque to supplier in respect of supplied packing material, but the cheque was dishonoured. Therefore, the supplier filed complaint under section 138. Magistrate dismissed the complaint by concluding that since the cheque amount was more than the amount allegedly due on the date when the cheque was presented, therefore, in terms of section 138, the cheque could not be said to be drawn towards the discharge of either the whole or part of any debt or liability. Therefore, the supplier filed an appeal against the order. Held: There were contradictions with regard to number of cartons which were carried through the span of the supplier, even there were huge variations with respect to the charges of carriage. Therefore, the Magistrate committed no error by concluding that the amount claimed in the complaint was much higher. The supplier was obliged to prove the existence of consideration as a matter of fact and upon his failure to prove the same, disentitled him to the grant of relief on the basis of negotiable instrument. Thus, there was no merit in the appeal.

REFERRED : Rangappa v. Sri Mohan (2010) 11 SCC 441 (SC) : 2010 TaxPub(CL) 0345 (SC); Krishna Nanardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54 (SC) : 2008 TaxPub(CL) 0274 (SC); MS Narayana Menon @ Mani v. State of Kerala & Anr. (2006) 6 SCC 39 : 2007 TaxPub(CL) 0116 (SC)

FAVOUR : Against the appellant

A.Y. :



IN THE HIMACHAL PRADESH HIGH COURT

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