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TMI Blog2021 (2) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and wrongly held that the accused is to be acquitted for want of cause of action and bar of limitation in filing complaint. The trial court shall frame proper point for consideration as to the legally enforceable debt or liability and also frame points for consideration as to presumption arising under section 118 and 139 of Negotiable Instrument Act and also to raise a point as to whether the accused has rebutted that presumption by preponderance of probabilities proves that his defense as probable. Without discussing the evidence of complainant or accused in a proper perspective simply stating there are latches in the complainant's case without stating what are those latches the finding is not tenable or legally sustainable. The trial court has committed a serious error in not appreciating the oral and documentary evidence. Except this limitation point no other points have been answered with reference to settled principle of law in appreciating evidence in case of Negotiable Instrument Act or Cheque Bounce case. Therefore, it is wise to set aside the order of the trial court and to remand the case for fresh disposal of case in accordance with law i.e., to hear both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred on the following grounds a) that the findings of the Magistrate that two legal notices were issued by the complainant, on the basis of subsequent legal notice the complaint is not maintainable is erroneous. b) the observation of the trial court that Ex.P.1 invoice does not bear the signature of the accused is baseless and erroneous. c) the complainant has proved all the ingredients of section 138 of N.I Act. The issuance of cheque is clearly admitted by the accused. There is no proper appreciation of evidence in the right perspective which has resulted in wrong acquittal. With these main grounds the complainant prays to set aside the Judgment of acquittal and convict the accused. 8. Heard Sri.Sachin M Mahajan learned counsel for appellant and Sri.Basavaraj R. Math learned counsel for respondent. 9. The learned counsel for the appellant argued that, the entire acquittal is based on wrong assumption that, the date of issue of statutory notice is 03-07-2009. In fact Ex.P.4 intimation given by the Bank to the complainant is on 04-07-2009. Ex.P.5/notice clearly indicates the date of issue of statutory notice as 03-08- 2009, Ex.P.6 and Ex.P.7 postal rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence that accused was doing any rice business and there is no evidence that, only on a phone call 100 rice bags were sent. The driver of the Lorry who received the bill is not examined. The cheque is issued for civil dispute. The complainant has not adduced any evidence to prove his case. The learned counsel also argued that there is a dispute in respect of land. In support of his arguments learned counsel has relied upon reported in AIR 2019 SC 2496 in case of Birendra Prasad Sah Vs State of Bihar and another at para No.10 it is held as under: 10. In the present case, the facts narrated above indicate that the appellant issued a legal notice on 31 December 2015. This was within a period of thirty days of the receipt of the memo of dishonour on 4 December 2015. Consequently, the requirement stipulated in proviso (b) to Section 138 was fulfilled. Proviso (c) spells out a requirement that the drawer of the cheque has failed to make payment to the holder in due course or payee within fifteen days of the receipt of the notice. The second respondent does not as a matter of fact, admit that the legal notice dated 31 December 2015 was served on him. The appellant has in the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t due by the accused or whether the accused has taken delivery of rice on credit basis it creates clouds over genuinity of Ex.P.1. The learned trial court strangely observes that on Ex.P.1 invoice there should be signature of accused. The learned Judge of trial court also states that, accused admitted in his cross-examination regarding issuance of cheques, but did not discuss anything what is the lacuna in proving the case by the complainant. The reasons for arriving at such a decision is not forthcoming. Whether the doubt or cloud is cleared by the accused by his evidence or his cross-examination is not at all stated nor it is stated whether the evidence of of accused probablise the defense of the accused that the cheque was given in respect of civil dispute. Therefore, when DW.1 accused has not stated anything as to how and when and under what circumstances the cheque signed by him and came into possession of complainant the trial court reasons are not clear. No reasons are assigned regarding disbelieving the evidence of complainant or believing the defense of the accused. Therefore without considering the settled principles regarding appreciation of evidence in a cheque bounce c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate is typed as 03-07-2009 instead of 03-08-2009 it cannot be presumed or held that, the said notices were issued on 03-07-2009 itself. On the other hand the contents of the said notice clearly indicates that the dishonour intimation was received on 04-07-2009. The question of issuing statutory demand notice under section 138 of N.I Act arose only after receipt of the dishonour memo by the Bank. Before receipt of the said intimation the complainant cannot send or could not send demand notice mentioning future date as a Bank intimation regarding dishonour of cheque. The endorsement by the postal authorities, the seal of the postal department on cover and postal receipts coupled with contents of the said notice clearly indicates that the notice was sent on 03-08-2009 but not on 03-07-2009. The trial court wrongly interpreted the said aspect and without considering the effect of general clause Act section 27 has come to a conclusion that, cause of action on notice dated: 03--08-2009 is barred by limitation and wrongly held that the accused is to be acquitted for want of cause of action and bar of limitation in filing complaint. It is also stated that, the complainant has not filed any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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