9911796707
TMI Blog2001 (4) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... l notice disowning the liability contending that he has not issued any cheque and that the complainant was associated with the business of the accused carried under the style of Darshan Prabha Traders dealing with confectioneries and on account of the mismanagement by the complainant and his brother-in-law, the accused has sustained loss in the business and that the complainant had also invested ₹ 22,400/-on the condition that the complainant and the accused shall share the profits and loss equally. In that connection the complainant was allowed to freely deal with the books of accounts and bank accounts thus thereby misusing the opportunity, a false liability is concocted by manipulating the cheque. 2. A private complaint came to be lodged. The accused appeared before the Trial Court contested the case. In evidence, the complainant has examined himself and one witness who is Bank manager of the Bank of India. For the complainant five documents are marked. Ex. P. 1 is the cheque, Ex. P. 2-endorsement given by the bank, Ex. P. 3-copy of the notice issued by the complainant, Ex. P. 4-postal acknowledgement., Ex. P. 5-reply given by the accused. On behalf of the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to a closed bank account is improbable. 4. The Counsel for the respondent strenuously contended that when two views on the evidence is probable, the Appellate Court has to be very slow in interfering with the view of the Trial Court and contended that the judgment of acquittal of the Trial Court is fully justified for the reasons spoken to in the judgment. The Trial Court travelling beyond the records and the legal presumption available under Section 139 of the Negotiable Instruments Act by conjunctures takes the view that the complainant has not proved his financial capacity to convince that he could have lent the amount of ₹ 30,000/- as alleged. The Trial Court takes note of the replies given in the cross-examination that the complainant has been maintaining the bank account. Therefore, in that regard insists that the complainant ought to have produced his bank pass book to show his financial capacity. This logic of the Trial Court is totally unwarranted because in the cross-examination, there is not an iota of suggestion made challenging the financial capacity. The defence theory itself discloses that the complainant invested around ₹ 24,000/-in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 313 of the Criminal Procedure Code, wherein issuance of cheque has been clearly admitted. In my view, this question being purely a question of facts, cannot be raised and appreciated while exercising revisional jurisdiction more particularly when no such contention was ever raised before the Trial Court. The only defence advanced before the Trial Court is that the cheques were given to the complainant as advance payment towards the goods to be delivered in future. Thus, the applicant clearly admitted execution, hence, this contention needs no consideration and be rejected. Apart from this fact, no law provides that in case of any negotiable instrument entire body has to be written by maker or drawer only. What is material is signature of drawer or maker and not the body writing hence question of body writing has no significance . 7. It is not objectionable or illegal in law to receive a inchoate negotiable instrument duly signed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay High Court in Shivendra Sansguiri v M/s. Adineo and Another, wherein it is held thus: Mere dishonouring of a cheque cannot implicate the drawer of the cheque under Section 138. The holder of the cheque should bring to the notice of the drawer of the cheque the event of dishonouring within 15 days from the date of dishonour and in case the drawer of the cheque did not pay the amount covered by the cheque within 15 days thereafter then only Section 138 will attract. Therefore, the ground on which the cheque was dishonoured is not very material. It can very well be on closure of account also. If this ground is not held to be one covered under Section 138 of the Negotiable Instruments Act, then the very purpose of the legislation would be defeated. If a debtor with an ulterior motive issues a cheque in discharge of his debt and closes the account before or after the issuance of cheque to avoid payment he is doing it on his own risk. Moreover, cheque facility is afforded by a Bank to its customer only when a customer opens an account in a Bank with funds. This is part of its banking activity. Law does not take cognizance of a situation of issuance of a cheque witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is dishonoured on the ground that money standing in the credit of the account is insufficient to honour or that it exceeds the amount arranged to be paid from the account by the agreement made with the Bank. 14. In NEPC Micon Limited and Others v Magma Leasing Limited, it has been held thus: The return of a cheque by the Bank unpaid on the ground that the account is closed would mean that the cheque is returned as unpaid on the ground that the amount of money standing to the credit of that account is insufficient to honour the cheque . The reason is that the cheque was dishonoured as the amount of money standing to the credit of that account was nil at the relevant time apart from it being closed. The closure of the account would be an eventuality after tbe entire amount in the account is withdrawn. It means that there was no amount in the credit of that account on the relevant date when the cheque was presented for honouring the same. The expression the amount of money. .... is insufficient to honour the cheque is a genus of which the expression that account being closed is a specie. After issuing the cheque drawn on an account maintained, if the dr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
