Non Denial of issuance of Cheque and Acquittal under S.138 of Negotiable Instruments Act, 1881

Non Denial of issuance of Cheque and Acquittal under S.138 of Negotiable Instruments Act, 1881

In case of K.P. Gopi v. Shabna C [2011] GCtR 6588 (Kerala), trial court found that the accused is not guilty under Section 138 of the Negotiable Instruments Act, 1881. In this case there was no denial of the issuance of the cheque however, in the complaint and in the affidavit filed in lieu of the chief examination, the complainant has stated that he got acquaintance with the accused for several years, but he stated during the cross examination that the accused was introduced to him by one Thottathil Kannan, who took part in the mediation, when the cheque for Rs. 1,59,098/- was dishonoured. 

Date of Issuance of Cheque and its Effect on Acquittal in Section 138 of the Negotiable Instruments Act, 1881

Date of Issuance of Cheque and its Effect on Acquittal in Section 138 of the Negotiable Instruments Act, 1881  

In an interesting case [Ghanshyam D. Katira v. Sanjay J. Ganatra [2015] GCtR 6582 (Bombay)], the defence of the accused in case under Section 138 of Negotiable Instruments Act, 1881 is that he had not taken any loan of Rs.1,50,000 from the complainant. 

It was held that when cheque No.440855 had been issued in the year 1998, the possibility of the next cheque – bearing No. 440856 – having been issued in the year 2006 – i.e. after a gap of eight years – is rather remote; and this aspect is capable of rendering the version of the accused, plausible. The accused was acquitted.

The other issue noted was that there is also some confusion as to whether the loan in question was given by the complainant in his capacity as a 'money lender'.  It is not only because the same has been described as a 'friendly loan', but also because the money lenders business is being done by the complainant in the name of 'Harshal Money Lender'.   The cheque has not been issued in favour of 'Harshal Money Lender'. 

HC noted that the version of the complainant about the date, on which a loan was advanced to the accused, and the   date   on   which   the   accused   gave   a   cheque   towards   the purported repayment thereof, cannot be relied upon.   The story put forth by the complainant cannot be accepted as true.