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TMI Blog2017 (6) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused. The said fact makes amply clear that it does not attract the provisions of Section 138 of the N.I.Act. On careful scrutiny of the case, it appears that the loan transaction was with the father of the accused and the accused had handed over the cheque which was to be credited in the account of his father, to repay the outstanding amount due on his father and the said cheque was utilised by the bank authority for securing the dues of the accused from his account i.e. Account No. 0000226. Thus, the complainant has utterly failed to prove that the cheque was drawn on the account of the accused. The ingredients of section 138 of the N.I. Act are not proved by the complainant. The accused is therefore entitled for acquittal. - CR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused. On 17.03.2005, the complainantBank issued notice to the accused for payment of the cheque amount, which was received by the accused on 21.03.2005. As the accused failed to pay the said amount, the complaint was lodged by the complainant on 09.05.2005. In fact, he should have filed it on or before 07.05.2005 ie, within fifteen days from the receipt of notice by the accused. However, the delay of two days was condoned by the learned Magistrate on considering the evidence before the Court and acquitted the accused. 3 . Heard Ms.Kshirsagar, learned counsel for the complainant. She vehemently argued that the accused had issued a cheque on 23.02.2005 for the payment of loan outstanding against him, which was dishonoured, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is condoned, as per the order passed on Exh.1. However the order depicts that the delay in lodging the complaint was condoned, subject to proving the cause, at the time of trial. According to the complainant, the delay in lodging of the complaint was caused as the accused had assured the Bank to pay the amount. The said reason has not been elaborated in the evidence of the complainant. The said reason is not a plausible explanation as the complainant had already made up his mind to lodge the complaint against the accused. So far as the provisions of Section 138 are concerned, they are very categoric that fifteen days for the payment of the amount commences from the date of receipt of the notice. Proviso under section 142(b) clarifies that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheque, it is noticed that the handwriting of the contents in the cheque and of the signature on the cheque are totally different. It appears that the accused has simply signed on the cheque and the contents in the cheque were filled in by some different person. Interestingly, the complainant has not given the correct account of the outstanding amount at the time of issuing of the cheque by the accused. The complainant ought to have clarified the exact amount outstanding against the accused. Merely submitting that the accused had given the cheque for the payment of outstanding loan and it is dishonoured, is not sufficient to prove the guilt of the accused, under the provisions of Section 138 of the N.I. Act. It indicates that the cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson from out of that account; (ii) the cheque should have been issued for the discharge, in while or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue was issued by the accused which was drawn on the account which was not belonging to the accused but someone else. It appears that the said account was of the father of the accused. In view thereof, it can safely be said that the ingredients of Section 138 are not attracted. 10 . The complainant has relied upon the undertaking (Exh.29) dated 25.07.2005 which was given by the accused after filing of the complaint. Therefore the said undertaking does not cover the liability of the accused as it was given after lodging of the complaint and it does not give any benefit to the complainant for the purpose of enhancing the limitation to lodge the complaint. It is worthy to note here that paragraph 3 of the complaint reveals that the cheque w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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