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If the provisions are substantive in nature then the same cannot be applied Retrospectively to the pending cases. However, if the provisions are procedural in nature then the same has to be applied to all the cases, including the one pending before the Court.
SC held that once the court has drawn presumption of existence of legally enforceable debt as per Section 139 of the NI Act, factors like source of funds are not relevant if the accused has not been able to rebut the presumption.
Non-filing of Income Tax Return by itself would not mean that the complainant had no source of income and thus, no adverse inference can be drawn in this regard only because of absence of Income Tax Return.
It was held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption u/s 139 is guided by a preponderance of probabilities.
In the instant case, the respondent is seeking enforcement of the liability of the petitioners created under Section 30 and 37 of the Negotiable Instruments Act, 1881 as the cause of action for the plaint is based on the dishonour of the said cheques. Since, the suit is not based on any contract between the parties, the bar under Section 69 (2) of the of the Indian Partnership Act,1932 would not apply.
This article is a critical analysis of the recent judgment of NCLAT i.e., in the matter of Shah Brothers Ispat Pvt. Ltd. Vs. P. Mohanraj & Ors.-Company Appeal (AT) (Insolvency) No. 61 of 2018 wherein it has been held that moratorium will not be applicable to action under section 138 of the Negotiable Instruments Act, 1881.
This Act may be called the Negotiable Instruments (Amendment) Act, 2018. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
Lok Sabha passes Negotiable Instrument (Amendment) Bill, 2018 a bill further to amend the Negotiable Instruments Act, 1881 by which it has proposed to insert section 143A -Power to direct interim compensation and Section 148-Power of Appellate Court to order payment pending appeal against conviction. Bill No. 281-C of 2017 THE NEGOTIABLE INSTRUMENTS (AMENDMENT) BILL, […]
Kishan Rao Vs Shankargouda (Supreme Court Of India) In the present case, the trial court as well as the Appellate Court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank of the presumption under Section 139 was rightly raised which was not […]
When on receipt of money by way of cheque a liability is acknowledged by receiver as loan or deposit or share capital, it need to be viewed considering ground realities faced by receiver of money against which he incur liability.
