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TMI Blog2010 (9) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... r and (3) funds insufficient. On receipt of the dishonour memo, the complainant caused to issue a lawyer notice informing the accused regarding the dishonour of the cheque and also demanding for the payment of the amount covered by the dishonoured cheque and in spite of receipt of the notice, no amount is paid by the accused and thus according to the complainant, the accused has committed the offence punishable under section 138 of the N.I. Act. 2. With the above allegation, the complainant by filing a complaint approached the Judicial First Class Magistrate Court-IV Kozhikode, upon which cognizance was taken for the offence under section 138 of the N.I. Act and instituted C.C. No. 18/2004. During the trial, the complainant himself was examined as PW1 and he produced Exts.P1 to P4 documents as Exhibits for the prosecution. From the side of the defence, no evidence, either oral or documentary, is adduced. By an elaborate judgment, the trial court found that the complainant had complied with all the requirements to initiate prosecution under section 138 of the NI Act and also found that the cheque in question was issued to discharge a legally enforceable debt and the cheque was di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the learned counsel, the complainant has not proved the transaction alleged by him and the courts below miserably failed to appreciate the above aspect. It is also the case of the learned counsel that one of the reasons for dishonour of the cheque is due to the stop payment issued by the revision petitioner/accused and thereby the revision petitioner has succeeded in establishing his defence. It is also the contention of the learned counsel that as admitted by the complainant, one of the reasons for dishonour of the cheque is due to signature incomplete and if that be so, there is no execution of the cheque and hence no presumption under section 139 can be drawn in favour of the complainant. Another contention advanced by the learned counsel is that the trial court, by dismissing the petition filed by the revision petitioner for summoning the bank officials to prove the fact that he had issued stop memo, denied the opportunity to substantiate his defence and thereby the revision petitioner is highly prejudiced. Thus, according to the learned counsel, both the trial court as well as the lower appellate court arbitrarily denied the opportunity to the revision petitioner to rebu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umption. Relying upon the recent decision in Rangappa v. Mohan (2010 (2) KLT 682)(SC), the learned counsel for the 1st respondent submitted that the accused has miserably failed to prove the reason for stop payment' and hence it cannot be said that he had discharged his burden of rebutting the presumption. It is also the submission of the learned counsel that the revision petitioner preferred a petition to call for the bank records only belatedly and though the petition was allowed during the defence stage, i.e. on 20.2.2007, no batta was paid in time which persuaded the trial court to close the defence evidence on 14.3.2007. According to the learned counsel, there is nothing illegal on the part of the trial court in dismissing the petition and the same was done only because of the omission on the part of the revision petitioner and hence, there is no merit in arguing that no opportunity was given for the defence. The learned counsel further submitted that the dishonour memo would show that the cheque was dishonoured for three reasons and one among the three reasons is insufficiency of funds in the account of the accused and hence no prejudice is caused to the revision petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r putting signature by the accused. The only perfunctory question put to him is regarding the name mentioned in Ext P1 cheque and the date on it. No other aspect was cross examined including the deposition of PW1 regarding the execution of the cheque and the signature contained therein. Therefore the failure of the revision petitioner to send an effective reply to the legal notice and his failure in establishing his case, reinforced the case of the complainant. Thus I find no illegality regarding the findings of the trial court as well as the lower appellate court in favour of the complainant with respect to the transaction and issuance of the cheque. 9. Of course, the revision petitioner has a case that he did not issue the cheque to the complainant and the signature which contained in the cheque is not of his and the cheque in question is one which lost from his possession and he had issued stop memo connected with the loss of the cheque. As I indicated earlier, during the cross examination there is no serious attack against the evidence rendered by PW1 regarding the execution of the cheque and nothing was brought to disbelieve or even shake the evidence of PW1. No reply was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture contained in Ext. P1 cheque is not that of the revision petitioner and the same was not put by him and the same was put by the complainant or somebody else. It is also relevant to note that no reply is given to the lawyer notice stating anything regarding the signature. Had there been a proper reply regarding the incomplete signature, the pleadings and evidence would have been shaped in such a manner so as to meet that defence. During the trial of the case also, no step was taken to get examined Ext. P1 cheque to show that signature seen therein was not put by the revision petitioner. During trial when the complainant had adduced evidence, in support of his claim and allegation, to which I referred above, it is for the accused to adduce contra evidence or to make out a probable case at least by cross-examining PW1. When PW1 deposed that the accused issued the cheque putting his signature, it is for the accused to take steps to show that he had not put his signature in Ext. P1 cheque. Merely stating one of the reasons stated in the dishonour memo, that is, incomplete signature , the accused cannot be said to have discharged his burden, particularly, in the nature of evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put by the accused or put by somebody, other than the revision petitioner, it cannot be said that the cheque was not executed by the accused and no presumption can be drawn under section 139 of the N.I. Act and the liability under section 138 of the ISII Act is not attracted. Therefore it is for the revision petitioner to explain as to how the cheque in question, which pertained to his account bearing his incomplete signature reached in the possession of the complainant. But the revision petitioner has miserably failed to give any plausible and acceptable explanation supported by evidence. Hence the contention of the learned counsel on this count fails. 12. It is also relevant to note that though in the dishonour memo it is stated that the cheque was dishonoured due to direction for stopping the payment it is also crystal clear that there was no sufficient fund in the account of the accused revision petitioner. In M/s Modi Cements Limited v. Shri Kuchil Kumar Nandi (JT 1998 (2) SC 198), the Apex court has held that stopping of payment will not preclude an action under section 138 of the N.I. Act. In the present case, as indicated earlier, no reply was given to the legal notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not inclined to interfere with the conviction recorded by the courts below, a breathing time may be granted to the revision petitioner to pay the compensation amount as ordered by the courts below. Having regard to the facts and circumstances involved in the case, I am of the view that the above submission of the learned counsel has to be considered positively bearing in mind the other relevant inputs of the case. As per the records, the cheque in question is dated 5.12.2003, that too for an amount of ₹ 2,50,000/- and as per the findings of the courts below which are approved by this court, the said amount which belongs to the complainant is with the revision petitioner for the last seven years. Though the trial court on convicting the revision petitioner, imposed a sentence of six months simple imprisonment, by the judgment dated 20.3.2007, the appellate court has reduced the sentence to one day's simple imprisonment but maintained the direction to pay the compensation amount as fixed by the trial court. Though the appellate court disposed of the appeal on 26.6.2008. no amount is seen paid so far to the complainant. The Apex Court, in its recent decision in Damodur S. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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