Failure to disclose liability of drawer, supply list of witnesses do not vitiate complaint under Section 138 NI Act: Jammu & Kashmir High Court

14th June,2021

Failure to disclose liability of drawer, supply list of witnesses do not vitiate complaint under Section 138 NI Act: Jammu & Kashmir High Court


The Jammu and Kashmir High Court has as of late decided that a protest under Section 138 of the Negotiable Instruments Act (NI Act) won't be vitiated because of disappointment by the holder of the check to uncover/state in his objection that the check was gotten for release of lawfully enforceable obligation or risk with respect to cabinet of the check (Narinder Singh v. Sharjeel Malik).The judgment was conveyed by single-judge Justice Sanjeev Kumar on May 17 who decided that taking into account Section 139 of the NI Act, it isn't accessible to the solicitor to contend that without the particular notice in the grievance that the check was gotten by the respondent in the release of any obligation or other risk, the grumbling isn't viable.

"It genuine that in the objection the respondent has not unveiled the legitimately enforceable obligation or responsibility in release whereof he has gotten the check from the candidate. That, nonetheless, can't vitiate the grievance for the basic explanation that under Section 139 of the Act, there is assumption that holder of the check got the check of the nature alluded to in Section 138 for the release, in entire or to a limited extent, of any obligation or other responsibility except if obviously the opposite is demonstrated," the Court held. The Court additionally saw that the imperfection of not providing the rundown of arraignment witnesses is just an anomaly and the equivalent would not vitiate the procedures except if it has prompted disappointment of equity.

The respondent for the situation had documented a protest under Section 138 of the NI Act against the candidate on the claims that the applicant had given in support of himself, a check for a measure of Rs 25 lakh drawn for solicitor kept up with Ellaquai Dehati Bank, Branch Bhaderwah.

The respondent kept the said check for encashment yet the equivalent was gotten back with the reminder that record of the solicitor didn't have adequate assets for its encashment.

The respondent then, at that point served an interest notice on the applicant mentioning him to make the installment of the check sum inside fifteen days however the candidate didn't make the installment because of which an objection under Section 138 of the Act was documented under the steady gaze of the preliminary court. The preliminary court engaged the protest and took discernment of it in the wake of recording primer explanation of the complainant and his observers and gave a request on August 20, 2019 to continue against the solicitor.

This request for issuance of interaction was brought being referred to by the solicitor under the watchful eye of the High Court essentially on two grounds:

I) that the objection isn't viable for the explanation that in the grievance the respondent didn't explicitly guarantee that he had gotten the check in release of some lawfully enforceable obligation or responsibility;

ii) that the protest doesn't contain the rundown of witnesses.