Burden of poof in N i act
G.G.Shaikh Advocate M:9898038990
(Querist) 18 October 2009
This query is : Resolved
please give me any latest judgment about Burden of proof on complainant to prove his legal due
Adinath@Avinash Patil
(Expert) 18 October 2009
NEGOTIABLE INSTRUMENT ACT SECT.138- DISHONOUR OF CHEQUE-BURDEN OF PROOF-TO WARRANT CONVICTION UNDER SECTION 138 OF N.I.ACT BURDEN IS ON COMPLAINANT TO PROVE THAT IMPUGNED CHEQUE RELATED TO DISCHARGE OF LEGALLY ENFORCEABLE DEBT.
MEYYAMMAI, PROPRITARY OF M/S MURUGAN ENTERPRISESS V/S M/S INDIA ENGINEERING CORPORATION.
[2008[1] DCR 49
DECIDED ON 11/06/2007
A V Vishal
(Expert) 18 October 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 28.10.2008
CORAM:
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
Crl.A.No.408 of 2002
Sakthi Ganesh Finance
a Firm represented by its
Managing Partner Chinnasamy .. Appellant/Complainant
vs.
C.Ashok Kumar .. Respondent/Accused
adv. rajeev ( rajoo )
(Expert) 19 October 2009
Boundan duty of compalinant : it is the bounden duty of the comlplainant to show that only for the subsisting debt or liability the cheques were drawn by the acccused.
NEGOTIABLE INSTURMENTS JUDGMENTS 2008 MADRAS PAGE 225
PJANARDHANA REDDY
(Expert) 19 October 2009
DEAR ADMIN,
PLEASE PROVIDE US THE ATTACHMENT FIELD IN THE REPLY MASSAGE,IT WILL BE MOST APPRECIABLE IF YOU DONE ON URGENCY BASIS AS DID IN GENERAL FORUM.
IT WILL BE VERY EASY TO ATTACH THE RELEVANT JUDGMENTS
H. S. Thukral
(Expert) 19 October 2009
With apologies ( because all of them are top members) I differ with all my three Ld. Friends, who have given the opinion herein. There is a clear cut ruling of SC on the subject. It is to be presumed that the cheque was issued in discharge of debt or liability. Accused has to rebut the presumption.
Kindly see K N Beena v Muriappan 2001 AIR(SC) 2895
Sachin Bhatia
(Expert) 19 October 2009
In Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar the Bombay High Court held that:
"A clear reading of Section 138 leaves no doubt in our mind that the circumstances under which such a dishonour takes place are required to be totally ignored. In such case, the law only takes cognizance of the fact that the payment has not been forthcoming and it matters little that any of the manifold reasons may have caused that situation."
PJANARDHANA REDDY
(Expert) 19 October 2009
THE BELOW IS TEX OF JUDGMENT, SORRY FOR THE WASTING LONG SPACE OF PASTING.
PETITIONER:
K.N. BEENA
Vs.
RESPONDENT:
MUNIYAPPAN AND ANOTHER..
DATE OF JUDGMENT: 18/10/2001
BENCH:
S.N.Variava, K.T.Thomas
JUDGMENT:
S. N. VARIAVA, J.
Leave granted.
Heard parties.
Briefly stated the facts are as follows:
The Appellant filed a complaint under Section 138 of the Negotiable
Instruments Act as the cheque dated 6th April, 1993 in a sum of Rs.63720/-,
issued by the 1st First Respondent in favour of the Appellant on Central
Bank, had been dishonored with the remarks "Insufficient Funds". The
Appellant had issued a legal notice dated 28th April, 1993. Receipt of the
said notice is admitted. A reply dated 21st May, 1993 was sent by the 1st
Respondent. However no payment was made.
After trial the Judicial Magistrate-II, Kumbakonam, convicted the 1st
First Respondent under Section 138 and directed payment of a fine of
Rs.65000/-. In default the 1st Respondent was to suffer simple imprisonment
for one year. The 1st Respondent challenged the conviction and sentence by
filing Criminal Appeal No. 32 of 1995. The same came to be dismissed by
the Sessions Judge on 28th August, 1995.
The 1st Respondent then preferred Criminal Revision No. 883 of 1995
before the High Court of Madras. A learned Single Judge, by the impugned
Order dated 20th July, 2000, set aside the conviction and acquitted the 1st
Respondent. The learned Judge acquitted the 1st Respondent on the ground
that the Appellant had not proved that the cheque dated 6th April, 1993 had
been issued for any debt or liability.
In our view the impugned Judgment cannot be sustained at all. The
Judgment erroneously proceeds on the basis that the burden of proving
consideration for a dishonored cheque is on the complainant. It appears that
the learned Judge had lost sight of Sections 118 and 139 of the Negotiable
Instruments Act. Under Sections 118, unless the contrary was proved, it is
to be presumed that the Negotiable Instrument (including a cheque) had been
made or drawn for consideration. Under Section 139 the Court has to
presume, unless the contrary was proved, that the holder of the cheque
received the cheque for discharge, in whole or in part, of a debt or liability.
Thus in complaints under Section 138, the Court has to presume that the
cheque had been issued for a debt or liability. This presumption is rebutable.
However the burden of proving that a cheque had not been issued for a debt
or liability is on the accused. This Court in the case of Hiten P. Dalal vs.
Bratindranath Banerjee reported in (2001) 6 S.C.C. 16 has also taken an
identical view.
In this case admittedly the 1st Respondent has led no evidence except
some formal evidence. The High Court appears to have proceeded on the
basis that the denials/averments in his reply dated 21st May, 1993 were
sufficient to shift the burden of proof onto the Appellant/Complainant to
prove that the cheque was issued for a debt or liability. This is an entirely
erroneous approach. The 1st Respondent had to prove in the trial, by leading
cogent evidence, that there was no debt or liability. The 1st Respondent not
having led any evidence could not be said to have discharged the burden cast
on him. The 1st Respondent not having discharged the burden of proving
that the cheque was not issued for a debt or liability, the conviction as
awarded by the Magistrate was correct. The High Court erroneously set
aside that conviction.
In this view of the matter the impugned Judgment is set aside. The
conviction and sentence as awarded by the Magistrate by his order dated 21st
March, 1994, stand. The 1st Respondent is granted one months’ time to pay
the fine. In default thereof he shall suffer simple imprisonment for 3
months. The fine, if realised, Rs.60,000/- therefrom shall be paid to the
Complainant as compensation.
The Appeal stands disposed of accordingly. There will be no Order as
to costs.
PATEL HIRALAL JOITARAM VS
PJANARDHANA REDDY
(Expert) 19 October 2009
PLEASE GO THROUGH THIS LINK
http://www.lawyersclubindia.com/judiciary/judiciary_detail.asp?judiciary_id=1172
Ravi Arora
(Expert) 19 October 2009
do agree with mr.harbhajan
