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TMI Blog2021 (4) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... oluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars and itself would not invalidate the cheque - Thus after admitting issuance of Ext. P2 cheque, and having regard to the circumstances led to the issue of the instrument, the first respondent is estopped from taking contentions. Much has been argued about the Ext. D2 counter foils of cheques kept by him. In my assessment, no inference can be drawn on the arguments based on Ext. P2. It can be assumed that it is a document maintained in regular course of business. Even otherwise, the other circumstances adverted to earlier give a clear upper hand to the appellant. He has proved execution of Ext. P2 cheque and thus is entitled to draw th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first respondent was alerted through a lawyer notice on 29.04.2006, demanding payment of the amount within 15 days. Though the notice was served on him, the amount was not paid and thus the complaint was instituted before the trial court on 27.05.2006. 2. Pursuant to the summons, the accused/first respondent entered appearance and pleaded not guilty to the allegation. Thereafter, the Assistant Legal Officer of the complainant company, who is also the power of attorney holder of the Managing Director gave evidence as PW1. Exts. P1 to P6 were also marked. When examined under Section 313(1)(b) of the Cr.P.C., the first respondent denied the incriminating materials spoken against him. To the penultimate question, he replied that the Ext. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cords were also summoned and examined. 5. According to the learned counsel for the appellant, it was a chitty transaction, the sala of the chitty was ₹ 1,00,000/-, the first respondent had bid the chitty and a sum of ₹ 75,000/- was paid to him, the Ext. D4 ledger extract would reveal that he had paid only an amount of ₹ 42,000/- which includes dividend payable; when balance amounts were due, the first respondent reached the office of the appellant and gave the Ext. P2 cheque for the balance sum of ₹ 58,000/- and also the interest accrued. However, the interest portion is not shown in the Ext. D4 ledger extract. The learned counsel also invited my attention to the relevant portions of the Chit Funds Act and submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest is also payable by him; when the fact was apprised to the first respondent, he gave the Ext. P2 cheque, which, on presentation was dishonoured due to insufficiency of funds and that gave rise to the cause of action for initiating the prosecution case. 9. As noticed earlier, the fact that the first respondent was a subscriber to the chitty and had received the bid amount of ₹ 75,000/- is not in dispute. Similarly, the fact that the Ext. P2 cheque belonged to the first respondent also is beyond dispute. But according to him, it was handed over in a signed blank form and other matters were incorporated by the appellant. Thus the complaint was filed after misusing the instrument. The learned counsel for the first respondent also po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, payable or in default of payment of instalment and such other amounts as may be payable to him under the provisions of the Chit Funds Act. The appellant is the Foreman of the chitty and the first respondent is a defaulted subscriber. In the circumstances, the appellant is entitled to get back an amount of ₹ 58,000/- together with interest, penalty and other incidental expenses. 11. Even though the learned Magistrate was convinced that the appellant is entitled to realise interest at 18% per annum on defaulted subscription, the complaint was dismissed on the premise that the liability of the first respondent will be much less than the amount shown in the Ext. P2 cheque. Having regard to the matters noticed above, I find it difficult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en argued about the Ext. D2 counter foils of cheques kept by him. In my assessment, no inference can be drawn on the arguments based on Ext. P2. It can be assumed that it is a document maintained in regular course of business. Even otherwise, the other circumstances adverted to earlier give a clear upper hand to the appellant. He has proved execution of Ext. P2 cheque and thus is entitled to draw the presumptions under Sections 118 and 139 of the Act. The first respondent could not rebut the presumptions. The learned Magistrate has failed to consider these relevant aspects on its proper perspective. The judgment is liable to be interfered with. 15. In the result, the finding that the first respondent has not committed the offence is liable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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