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Index > Banking Law-Dishonour of Cheques
 
 
   
  
 
 
  
K.S. Anto vs Union of India And Ors. (Ker HC) 
1993 76 CompCas 105 Ker 

 

 
Magistrate can try and decide that the cheque in question was in discharge of legally enforceable debt and for that he need not refer the matter to civil court and wait decision.
 

 

 
 

Power to try and convict includes the power to decide existence of the ingredients necessary to constitute the offence. One of the ingredients to be found is as to whether the cheque was drawn in discharge, in whole or in part of any legally enforceable debt or other liability. If that question arises in a civil suit, it could be said that it could be decided only by that civil court. In a criminal prosecution, that question will arise only collaterally for the purpose of deciding criminal liability. The Magistrate himself can decide it for the purpose of the criminal trial and conviction. He is not deciding that matter to decree a suit for money due under the cheque. His finding may not be binding on a civil court. Still, for the purpose of conviction, he himself can decide that matter. Without deciding that matter, he cannot enter conviction. Power to convict includes the power to decide anything necessary for that purpose. As apprehended by the petitioner, after taking cognizance, he need not refer the question of drawing of the cheque in discharge of a legally enforceable debt or other liability to a competent civil court and await its decision to proceed with the trial. Such an absurd contingency could never have been contemplated by the Legislature. [Para 6]

 
 
 
 

 

 
 
 
 

 

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