Model Discharge Petition in Cheque Bouncing Case
BEFORE THE LD 1st JM, AT HOWRAH
(Jurisdiction u/s 138 of NI Act 1881 and Ch 21 of BNSS 2023)
Complain Case No-1440/2024
Claim Amount: Rs 10,00000/-
Brajesh Prasad
…….. Complainant
vs
Ram Yadav
……… Accused
HUMBLE DISCHARGE PETITION ON BEHALF OF THE ACCUSED PERSON U/S 281 OF BNSS 2023 READ WITH 138 OF NI ACT, WITH ALL AMENDMENTS OR RE-ENACTMENT.
Date: 30/01/2024
MOST RESPECTFULLY SHOWETH:
- That the present petition is being filed under Section 281 of the BNSS, 2023, seeking discharge of the accused, Ram Yadav, from the instant proceedings initiated under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”).
- That the accused person is not liable for prosecution under Section 138 of the NI Act due to the following legal grounds and developments:
GROUNDS FOR DISCHARGE:
A. Absence of Legal Debt or Enforceable Liability
- That Section 138 of the NI Act mandates the existence of a legally enforceable debt or liability. However, in the instant case, the complainant himself has acknowledged in Paragraph 5 of his complaint that the alleged debt pertains to the accused’s father, Pan Yadav, and not the accused, Ram Yadav.
- That as per the settled principle laid down by the Hon’ble Supreme Court in Basalingappa v. Mudibasappa [(2019) 5 SCC 418], a cheque must be issued towards a legally enforceable debt or liability. Since the accused did not incur the debt in his personal capacity, he cannot be made vicariously liable for the alleged obligation of his father.
B. Agreement Executed Under Coercion and Duress
- That the father of the accused, P Yadav, was arrested in connection with Bali P.S. Case No. 182/2023, and in order to secure his bail, the complainant extracted an agreement dated 23st July 2023, forcefully shifting the liability onto the accused.
- That such an agreement, entered under coercion, violates Section 24 of the Indian Contract Act, 1872, which renders agreements induced by undue influence or coercion void ab initio. Furthermore, such coercive practices violate Article 21 of the Constitution of India, which guarantees protection against arbitrary deprivation of personal liberty.
- That in Triyambak S. Hegde v. Sripad [(2021) 3 SCC 742], the Hon’ble Supreme Court held that for an offence under Section 138 NI Act, the cheque must be issued voluntarily towards a subsisting liability. Any instrument extracted under coercion or as an indemnity for bail is not a valid cheque under the NI Act.
C. Cheque Issuance Does Not Automatically Create Criminal Liability
- That mere issuance of a cheque does not constitute an offence under Section 138 of the NI Act unless it is issued against a legally enforceable liability. The complainant is misusing the provisions of the NI Act to enforce an indemnity obligation, which is a civil matter and falls under the jurisdiction of civil courts rather than criminal courts.
- That in Indus Airways Pvt. Ltd. v. Magnum Aviation [(2014) 12 SCC 539], the Supreme Court held that a cheque issued as a security or conditional assurance does not attract the penal provisions of the NI Act.
- That in the present case, the cheque issued was neither towards the accused’s personal liability nor a direct debt obligation, but a forced obligation imposed under duress to secure bail for his father. Such circumstances do not constitute a criminal offence under Section 138 of the NI Act.
D. Misuse of Criminal Law for Recovery of an Alleged Debt
- That the complainant is attempting to recover an unverified debt through criminal proceedings, which is an abuse of process. The Hon’ble Supreme Court in Jagdish Singh v. Heeralal [(2014) 3 SCC 477] has held that criminal courts cannot be used as tools for debt recovery when civil remedies are available.
- That the correct legal recourse for the complainant is to approach a civil court for the enforcement of any indemnity agreement, if at all valid, instead of initiating a criminal complaint under Section 138 of the NI Act.
- That the accused cannot be made criminally liable for a third party’s obligation, especially when no direct financial transaction took place between the accused and the complainant.
E. Presumption under Section 139 NI Act is Rebuttable
- That Section 139 of the NI Act provides a presumption in favor of the holder of the cheque that it was issued for a legally enforceable debt. However, the Supreme Court in Kumar Exports v. Sharma Carpets [(2009) 2 SCC 513] held that this presumption is rebuttable, and once the accused establishes a prima facie case of non-existence of liability, the burden shifts to the complainant.
- That in the present case, the accused has successfully rebutted the presumption under Section 139 NI Act by showing:
- The alleged debt belongs to his father.
- The agreement was obtained under duress.
- The cheque was not issued for a personal or direct liability.
Thus, the case cannot be maintained under Section 138 of the NI Act.
PRAYER
In light of the above facts and the settled principles of law, the accused humbly prays that this Hon’ble Court may be pleased to:
a) Discharge the accused under Section 281 of the BNSS, 2023, as no offence under Section 138 NI Act is made out.
b) Pass any other orders as this Hon’ble Court may deem fit and proper in the interest of justice.
Date: 30/01/2024
Place: Howrah
And for this act of grace you petitioner shall be duty bound and shall ever pray.
Summary of Key Legal Citations in Support of Discharge:
✔ Basalingappa v. Mudibasappa [(2019) 5 SCC 418] – Absence of legal debt invalidates Section 138 proceedings.
✔ Triyambak S. Hegde v. Sripad [(2021) 3 SCC 742] – Cheque must be voluntary and against an existing liability.
✔ Indus Airways Pvt. Ltd. v. Magnum Aviation [(2014) 12 SCC 539] – Security cheques are not covered under Section 138 NI Act.
✔ Jagdish Singh v. Heeralal [(2014) 3 SCC 477] – Criminal law cannot be misused for debt recovery.
✔ Kumar Exports v. Sharma Carpets [(2009) 2 SCC 513] – Rebuttable presumption under Section 139 NI Act.
