Dishonour of Cheque -- Mismatch Between Cheque in Complaint and Cheque Put to Accused -- Vitiates trial as structural defect
(i) Negotiable Instruments Act, 1881, S.138 -- Dishonour of Cheque -- Mismatch Between Cheque in Complaint and Cheque Put to Accused -- Vitiates trial as structural defect. Compliance with Section 251 CrPC is the foundation of a fair summons trial, and putting particulars of a different cheque, number, and amount to the accused at the plea stage prejudices his defence from inception. Such a mismatch is not a curable irregularity under Section 465 CrPC. (ii) Negotiable Instruments Act, 1881, S.139 -- Dishonour of Cheque -- Source of Loan Amount Unproved -- Statutory presumption of legally enforceable debt rebutted. The presumption under Sections 118 and 139 on proof of signature is rebuttable, and where the complainant admits she was unemployed and received the loan amount from her father who was never examined, and this circumstance was not put to the accused under Section 313 CrPC, a significant evidentiary gap arises against the existence of a legally enforceable debt. (iii) Limitation Act, 1963, S.18 -- Dishonour of Cheque -- Cheque Issued Within Limitation Period -- Amounts to acknowledgment extending limitation. Issuance of a signed cheque within three years of the loan amounts to a valid acknowledgment of debt, extending the period of limitation for the underlying claim.
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