NEGOTIABLE INSTRUMENTS ACT, 1881

Section 138

Dishonour of cheque - Defence of issuance of cheque to another person not considered by lower Courts - Non-rebuttal of presumption by borrower with evidence - Whether borrower is rightly held guilty for offence under section 138

Lender filed complaint under section 138 against borrower, as issuance of cheque for discharge of loan liability was dishonoured due to insufficient funds. Trial Court passed judgment of conviction against the borrower, which was upheld by Sessions Court. The borrower filed revision petition against the judgment as defence of issuance of the cheque to another person was not considered by both the Courts. Held: The borrower, despite having received legal notice, failed to send any reply to the lender raising therein dispute with regard to issuance of cheque. Neither the borrower lodged any complaint with regard to loss/theft of his cheque with police nor he informed such fact to bank, so that payment could be stopped. Further, the borrower tried to raise a defence that the cheque in question was actually issued to another person, but such person never came to be examined. The borrower had not filed any evidence, which proved that the cheque was not issued to the lender for discharge of the liability. Presumption under sections 118 and 139 was not rebutted by the borrower with evidence. Thus, the borrower was rightly held guilty for the offence under section 138.

REFERRED : M/s. Laxmi Dyechem v. State of Gujarat, 2013(1) RCR (Criminal) : 2013 TaxPub(CL) 0461 (SC); Krishnan and another v. Krishnaveni and another, (1997) 4 Supreme Court Case 241; State of Kerala v. Puttumana Illath Jathavedan Namboodiri' (1999) 2 Supreme Court Cases 452;

FAVOUR : Against the petitioner

A.Y. :

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