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TMI Blog2020 (5) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted and delivered a cheque dated 17.02.2007, for a sum of Rs. 1,40,243/- (Rupees One Lakh Forty Thousand Two Hundred and Forty Three only). The cheque was presented for collection, which was returned dishonoured on the ground of "funds insufficient and drawer's signature differs". A statutory notice was issued which was received on 08.03.2007. It was neither replied nor the amount paid. Accordingly, the complaint was filed. 2. Accused appeared and contested the proceedings. On the side of the complainant, PW1 who was the Power of Attorney Holder of the complainant was examined and Ext. P1 to P13 were marked. There was no oral evidence on the side of the accused, but Exts.D1 to D5 were marked. Exts. C1 to C3 were marked as Court Exhibits. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igned in his presence. He further deposed that, the accused and her husband has not repaid the amount thereafter. 7. The Court below did not appreciate the contentions setup by the complainant. The Court below relied on the contention of the learned counsel for the accused that, it was unbelievable that, though the chitty transaction took place from the Pala branch, the cheque was handed over at the office at Kottayam. The Court below also found that Ext. D5 notice was issued from the complainant's office at Pala, addressed to the husband of the accused in which the amount was not specified. Court opined that, if a person is given notice regarding the exact amount to be paid, he can fill up the cheque before handing it over to the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was the guarantor to the chitty transaction. The chitty transaction by the husband of the accused is not in dispute. On the other hand, the trend of the cross examination showed that PW1 was not cross examined at length and except making a vague suggestion that the cheque was not handed over by the accused, no further defence was setup. On the other hand, in the detailed reply to the Section 313 Cr.P.C. questioning, the case setup by the accused was that, on enquiry she understood that her husband had chitty transactions. It was revealed later that, at the time of release of the cheque amounts, the office of the chitty company had insisted for a cheque from the wife of the debtor, whereupon the husband is stated to have forged her cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also held by the Court below that the complainant had not specifically, disclosed the details of transaction. Since the accused was neither having any chitty transaction nor a defaulter, the complainant was bound to disclose the entire transaction in the complaint. The kuri transaction was not even referred to, it was held. On the other hand, the complaint itself, at paragraph 3 shows that, as on 17.02.2007 an amount of Rs. 1,40,243/- (Rupees One Lakh Forty Thousand Two Hundred and Forty Three only) was due from the accused towards the chitty arrears and interest. It was true that, the accused was not the subscriber of the chitty, but she being the guarantor of the husband was liable to pay the amounts due from the chitty transaction. To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discrepancies regarding certain remittances. It was explained by the learned counsel for the complainant that there was no discrepancy in the entries. 14. It was further contended by the learned counsel for the petitioner that even though this Court in Gopinatha Kurup (cited supra) held that the statements required under section 65B of the Indian Evidence Act should be produced, the Hon'ble Supreme Court had held in Shafhi Mohammad v. State of Himachal Pradesh (2019 (2) KHC 80) that procedural requirement under S.65B(4) of the Evidence Act for furnishing certificate was to be applied only when such electronic evidence was produced by a person who was in a position to produce such certificate, being in control of the device from which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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