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| The Tax Publishers 2022 TaxPub(CL) 2936 (Gau-HC) NEGOTIABLE INSTRUMENTS ACT, 1881
Section 138
Borrower raised objection regarding non-issuance of cheque to cheque holder as the cheque was lost and FIR was filed for the same, but no confirmation of FIR and letter issued to bank about loss of cheque was obtained, presumption under section 139 was not rebutted by the borrower with evidence, order of conviction was rightly passed against the borrower.
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Dishonour of cheque - Petition against order of conviction - Non-filing of any evidence regarding loss of cheque - Presumption under section 139 not rebutted by borrower with evidences
Lender filed a complaint under section 138 against borrower as cheque issued by the borrower was dishonoured. The borrower raised an objection that the cheque was lost and FIR was filed for the same, therefore, the cheque was not issued in favour of the lender. Trial Court passed an order of conviction against the borrower which was upheld by Sessions Court. The borrower filed a petition against the order on the ground that the Courts failed to consider the evidences presented by him. Held: The lender filed an agreement which proved advancement of loan by him to the borrower and issuance of the cheque by the borrower in respect of the loan. The borrower was not able to rebut statutory presumption under section 139. Even when the borrower provided copies of FIR and letter issued to bank about loss of cheque but no original documents were submitted, which made such copies secondary evidences. Confirmation regarding original documents was neither made by police nor by bank manager. The borrower failed to prove that order of Trial Court suffered from any legal or factual error or there was abuse of the process of the Court. Thus, the order of conviction was rightly passed by the Trial Court.
REFERRED :
FAVOUR : Against the Petitioner
A.Y. :
IN THE GAUHATI HIGH COURT
KALYAN RAI SURANA, J.
Naren Gogoi v. Prem Upadhayay
Crl. Pet. No. 730/2019
9 September, 2022
Petitioner by: S. Islam
Respondent by: SSS Rahman
Heard Mr. S. Islam, learned counsel for the petitioner and Mr. S. Nawaz, learned counsel for the respondent.
2. By filing this application under section 482 Cr.P.C., the petitioner, who has been convicted in a proceeding initiated under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') which was affirmed by the learned lower appellate Court has assailed the judgment and Order, dated 16-5-2019, passed by the learned Sessions Judge, Tinsukia in Crl. Appeal No. 5(1)/2018, thereby affirming the Judgment, dated 20-1-2018, passed by the learned Addl. Chief Judicial Magistrate, Tinsukia in N.I. Case No. 34/2012 and sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs. 10,00,000 (Rupees ten lakh only) under section 357 Cr.P.C.
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