Sec. 138 of n.i act
Adv M.D.Azhar
(Querist) 18 May 2017
This query is : Resolved
Respected sir, my client has filed a complain u/s. 138 of N.I.Act to recover rs. 3.50.000/- from the accused. accused is a brother of the complainant and therefore he was in need. In the trial defense of the accused was that his cheques were lost and accused did theft of it. we replied about that notice. During the cross examination of the complainant defense lawyer asked that r.u tax payer, he admitted than complainant submitted copies of the return from i.t. In those return amount withdrawn per year is less than the amount of the cheque so in that circumstances accused can be acquitted or it can be said that he has rebutted the burden as per sec. 139 of N.I. Act. i have read the judgment of the Honorable Delhi High court, LEKH RAJ SHARMA VS. YASH PAL GUPTA in which hon'ble h.c. held that to file less return and keeping the unaccounted money is the matter between Income Tax Department and the complainant. I need to know that can this judgment is helpful to me or accused has rebutted the presumption. kindly guide me to short out the issue.
Hemant Agarwal
(Expert) 06 June 2017
1. N.I.Act, case is "solely" based on the criteria of "legally enforceable liability /debt". Such liability should be recorded in the Balance Sheet of the Complainant. IF liability is not recorded THEN it is deemed that there is no liability.
2. IF the complainant cannot prove the liability, on record as evidence, THEN the complaint cannot stand.
Keep Smiling .... Hemant Agarwal
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