In a recent judgment, the Bombay High Court, held that the Complainant has to prove the basic fact of dishonor of cheque before the burden of proof is discharged by her to establish that an offence has been committed under Section 138 of the Negotiable Instruments Act, 1881.
The said ruling was delivered in the matter of Vandana vs. Abhilasha, Criminal Appeal No. 360 of 2017 decided on 18.08.2018.
The Appellant/Complainant filed an appeal against impugned order dated 30.03.2016 wherein the Respondent was acquitted for office punishable under Section 138 of Negotiable Instruments Act, 1881.
The Appellant had lent an amount towards hand loan to the Respondent for tuition fees of her daughter and other expenses from 04.02.2013 to 18.07.2013. The Respondent issues a cheque dated 11.03.2014 for the entire amount lent towards repayment of that loan. However, the cheque was presented twice for encashment on 26.03.2014 and on 12.05.2014 wherein it was dishonored due to “insufficient funds”. Appellant issued a demand notice and consequently filed a complaint under Section 138 of NI Act against the Respondent. Appellant place the dishonored cheque, demand notice, postal acknowledgment and her statement to police on record, along with a computer-generated copy of memo issued by the bank when the cheque was dishonored. The memo did not bear the official mark or signature of the bank officer as mandated under Section 146 of NI Act and was therefore not exhibited during evidence. The Respondent did not lead any evidence in support of her defense and relied on the cross-examination of the Appellant. As no direct suggestions were made by the appellant during cross-examination which said that the cheque was dishonored as mandated under S. 146 of NI Act, Magistrate held that although the Appellant had only proved that the cheque in question pertained to the discharge of legal debt, she failed to prove that the said cheque had been dishonored.
The High Court held that in case of complaints filed under Section 138, if a document is placed on record by the Complainant constitutes prima facie evidence of dishonor, a presumption operates about the fact of dishonor of cheque unless such fact is disproved. Thus, once memo or slip issued by the bank bearing its official mark concerning dishonor of cheque is placed on record by the Complainant, the burden is clearly on the accused to disprove the fact of dishonor of cheque.
However, in the present case, the memo did not bear any official mark of the bank as mandated under Section 146. Thus, the fact of dishonor of cheque was not proved as per Section 146 or by any other modes of proving dishonor of cheque and memo was not exhibited. Therefore the fact of dishonor of cheque was not proved and mere statement made in the statutory notice and complaint filed would not constitute proper proof of dishonor of cheque unless further evidence would have been lead to corroborate the same.