A person is deemed to have committed an offence within the meaning of section 138 of the Negotiable Instruments Act 1881 if a cheque drawn by him is drawn on an account held by him with a banker for the payment of a sum of money to another person for the payment of all or part of a debt or other legally enforceable obligation; will be reimbursed by the bank due to insufficient funds. SC discussed an interesting issue in this context in M/S. Indus Airways Pvt. Ltd. & Ors. v M/s. Magnum Aviation Pvt. Ltd., 2014 (4) SCALE 645: “Can dated cheques issued as advance payment for orders be considered to be the repayment of a legally enforceable debt or other liability, and if so, whether failure to cash such cheques constitutes a criminal offence under section 138”? (2) notification or reasonable attempt to inform the debtor that the debt is in arrears and, if it is not repaid within 60 days after the date of notification, it must be sent to the Ministère des Finances to offset the tax refund; After referring to a number of judgments, the Court held, with regard to the presumption provided for in Article 139 of the NI Act (presumption in favour of the proprietor), that, in order to rebut the legal presumption, a defendant is not supposed to prove his defence beyond doubt, as is expected of the applicant in criminal proceedings. The court added that the defendant may present direct evidence to prove that the note in question was not supported by consideration and that there was no guilt or responsibility to be assumed. (1) The House records contain no evidence that the debtor (or, if an individual, the debtor`s spouse) has declared bankruptcy under 11 U.S.C.; or (3) give the debtor at least 60 days from the date of the notice to provide evidence that the debt is not past due or legally enforceable, in whole or in part, taking into account the evidence provided by the debtor and determining that any amount of that debt is past due and legally enforceable; and It was further argued that subsequent courts had relied exclusively on the presumption against the applicant, although that presumption was rebuttable and that, where there was reasonable suspicion, the burden of proof for exemption from the document would be shifted to the complainant in order to prove that the issuance of the document would provide a legally enforceable claim. In addition, defence counsel argued that an adverse conclusion should be drawn against the applicant and that the legal presumption provided for in Article 139 could not exist against the applicant. (h) that, pursuant to 31 U.S.C. § 3716(a), cannot be administratively set off under 31 U.S.C.
§ 3716(c)(2) or cannot currently be recovered by the Board from amounts owed to the debtor by administrative order under 31 U.S.C. 3716(a); “The court need not insist in all cases that the accused refute the non-existence of consideration and guilt by direct evidence, because the existence of negative evidence is neither possible nor taken into consideration. At the same time, the mere denial of the existence of a counterpart and the existence of debts would not serve the purpose of the accused,” the judges said. The court ruled on the case that the defendant had made partial payments after the debt arose and before the cheque was cashed when due. The sum of twenty rupees lakhs depicted on the cheque was not the “legally enforceable debt” on the due date. Thus, it was decided that the defendant cannot be considered to have committed an offence under section 138 of the Act if the cheque was not cashed due to insufficient funds. “The failure of an ordinary person to exercise caution and demonstrate his ability to advance the amount to the applicant gives rise to suspicion that there is an enforceable debt against the applicant and thus tips the balance in favour of the accused. The burden of proof lies with the plaintiff to prove his case against the accused in whose favour there is a presumption of innocence,” the judge concluded. Under section 56 in conjunction with section 15 of the Act, an entry may be made by noting the partial payment of the debt by cheque or in a note attached to the cheque. If such approval is given, the instrument could still be used to negotiate balance. If the confirmed cheque is not cashed upon presentation for the cashing of the balance, the drawer may invoke the provisions of § 138.
Thus, if a partial payment of the debt is made after the cheque has been drawn but before the cheque is cashed, that payment must be noted on the cheque in accordance with section 56 of the Act. The cheque cannot be presented for cashing without noting the partial payment. If the unconfirmed cheque is not cashed on delivery, the contravention of section 138 would not be invoked because the cheque is not a legally enforceable claim at the time of cashing. (b) which is an obligation of a debtor who is a natural person or a company; Supreme Court: In the case where the Supreme Court had to decide whether the offence is deemed to have been committed under section 138 of the Negotiable Instruments Act 1881 if the cheque not cashed does not constitute the enforceable claim at the time of repayment, the Chamber of Dr DY Chandrachud* and Hima Kohli, JJ held that for the commission of a section 138 offence, the cheque not cashed on the due date or the production constitutes a legally enforceable cheque on the due date or on production. This is the first time we have had a debate on this subject. The Supreme Court has held that one of the conditions precedent to the imposition of the penalty prescribed in section 138 is that “there should be a legally enforceable debt or other liability at the time the cheque is issued.” If the check is issued as an advance payment for the purchase of goods, and in any case the order due to cancellation will not lead to its “logical conclusion”; non-delivery of goods; Otherwise, it cannot be assumed that the cheque was issued for an existing debt or liability.” This is a good example of SC retrospective thinking, where “the nature of something is established retrospectively from the perspective of where it ends, rather than prospectively from the perspective of where it went.” An outstanding and legally enforceable debt that can be returned to the Internal Revenue Service is a debt: In addition, the court found that the applicant was in a position to rebut his burden and the consequent application of the presumption under section 139 of the Negotiable Instruments Act against him and that the burden had therefore been transferred to the plaintiff, provide positive evidence to prove pre-existing liability and that it was legally enforceable at the time of issuance. of the cheque. In addition, Bhardwaj J. noted that, in order to rebut the presumption, an accused had to record the facts and circumstances which, after consideration, the court could either consider that the consideration and guilt did not exist, or that their non-existence was so likely that a prudent man would respond to the objection in the circumstances of the case.
that they did not exist.