Negotiable Instruments Act, 1881 – ss.138, 139 – Onus u/s.138 not on the complainant to initially lead evidence to show that he had the financial capacity for advancing loan to the accused, unless a case is set up in the reply to the statutory notice sent – On facts, the appellant advanced loan to the respondent no.2-accused – Cheque issued by the respondent to return the money was dishonoured with the endorsement ‘payment stopped by drawer’ – Respondent no.2 did not reply to the legal notice sent by the appellant – Complaint filed – Respondent no.2 convicted by Trial Court – Order confirmed by the Appellate Court – High Court set aside the conviction – Interference with:
Held: There are serious doubts with regard to the veracity of the defences raised by the respondent no.2 – Admittedly, the signature on the cheque is of the respondent no.2 himself – One of the ground on which the High Court acquitted the respondent no.2 was that the appellant was unable to prove the source of the amount given to him as loan – The onus is not on the complainant at the threshold to prove his capacity/financial wherewithal to make the payment in discharge of which the cheque is alleged to have been issued in his favour – Only if an objection is raised that the complainant was not in a financial position to pay the amount so claimed by him to have been given as a loan to the accused, only then the complainant would have to bring before the Court cogent material to indicate that he had the financial capacity and had actually advanced the amount in question by way of loan – Appellant had categorically stated in his deposition and reiterated in the cross-examination that he had withdrawn the amount from the bank – Respondent no.2 did not make any serious attempt to dispel such statement of the appellant – Appellant succeeded in establishing his case – Impugned order set aside – However, considering the age of the respondent no.2, conviction and sentence imposed upon him not revived – Sentence modified to only payment of fine, as directed. [Paras 18, 21-23]
Negotiable Instruments Act, 1881 – s.138 – Extent of burden of proof on the complainant – Discussed – Foremost defence available to the accused, stated. [Paras 15, 16] Negotiable Instruments Act, 1881 – s.138 – Maintainability of complaint – Cheque issued by the respondent no.2-accused, a Partner in the Partnership Firm M/s Sun Enterprises was dishonoured – Complaint u/s.138 filed by the appellant against the respondent no.2 – Respondent no.2 contended that the complaint was not maintainable since the drawer of the cheque i.e., the Partnership Firm-M/s Sun Enterprises was not arrayed as a party – Sustainability:
Held: Complaint is maintainable as the signatory of the cheque is arrayed as accused and is also the person in charge – It was never urged that the respondent no.2-accused, a Partner in M/s Sun Enterprises is not the person in charge thereof. [Para 20]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.