@kapoorsatish Who is to prove date of delivery of Cheque Accused or complainant?
There is a rebuttable presumption u/s 118 of NI Act with respect to date on cheque being the date of drawn, so it is up to accused who will have to prove the earlier date.
If you refer to S.46 of NI Act, then you will see that making / execution of the cheque is completed with the delivery, so ideally the six months should be calculated from the date of delivery, irrespective of any date on cheque. (If date of delivery can be proved).
Hon SC has come up with a bad order with respect to Post Dated Cheque (that PDC shall be treated as drawn on the date mentioned on it), SC forgot that under S.138 it is the criminal liability and S.46 clearly states that the making of the cheque is deemed to have been completed with delivery, so it was not in the jurisdiction of SC to interpret it differently with some absurd logic that it remains as bill of exchange till then and after that it becomes the cheque (they again forgot that cheque is always a bill of exchange). Ideally S.46 must be followed, but as far as S.138 of NI Act is concerened, with deepest respect but with deep anguish I must say that there is a widespread illegality, the Ld magistrates have not even understood the statue, I am sorry to say, sometimes I wonder even the SC/HC knows about this statue in totality or not.
1. SC has not even once spoke on actual definition of Holder.
2. SC orders on GPA (with respect to S.138 complaint) is not clear but confusing, leaves many unanswered questions.
3. SC/HC never refers to S.46, otherwise all these EMI or blank cheques with Banks will vanish.
4. SC/HC in some orders forgot that mere signature on the document is not the proof of execution.
5. One widely used order of SC with respect to compounding even at the appeal at SC level, is quit ...what to write..
6. One order of SC declaring the liability as Legal Liability under S.139 presumption is also not a fair ruling.
7. Most of the trial courts have not heard about the Mandvi Coop order of SC, and total violation.
8. many Trail courts conduct the trial as normal summon trial, which is against mandate.
9. SC is keeping a blind eye that all trial courts have forgotten that presumption of innocence is not taken away and guilt must be proved by prosecution beyond doubt.
10 SC is vague and not accused friendly on blank cheque, despite lack of law on blank cheque.
The presumption under S.139 is only about the type of liability, it is not about amount. The presumption is just this much that : Whatever complainant says about the purpose of cheque. (Means accused cannot say he issued the cheque for different liability or for GIFT), unfortunately no order of SC reflects this view. The complainant has to prove the liability amount otherwise so many statues (and sections) of various central acts get violated.
Take for example I took a car Loan, A scooter Loan, a home loan from ICICI bank, and the Bank has one blank cheque of mine which I issued at the time of car Loan. My car Loan is over, my scooter loan is over but I could not pay off my home loan, then ICICI bank used this blank cheque of mine and got it dishonered after filling my due amount on Home Loan..
This case must fail on following accounts..
1. Date of cheque beyond 6 months (S.46).
2. If I can prove that I issued this cheque for Car Loan, not for my Home Loan.
3. No authority to fill up the cheque, a Blank cheque was not a cheque when delivered.
All defense counsels must agitate these issues even at appellate stage, then only things will change. This statue is most inefficiently handled by judiciary.