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TMI Blog2006 (9) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... he balance of ₹ 57,67,873/- was payable and was to be paid as indicated in Para 4 of the agreement by the end of January, 2001. Another agreement dated 1-10-2001, came to be executed between the complainant and the Accused and this agreement was styled as Agreement of Settlement of Accounts. As per this agreement, seven cheques were issued with different dates mentioned on the said cheques to the complainant and there is no dispute that the first five cheques were honoured by the Accused. The dispute arose as regards the sixth cheque bearing No. 156749 dated 15-2-2002 and the seventh cheque bearing No. 082601 dated 15-3-2002. The dishonour of the said two cheques became the bone of contention between the parties. The dishonour of cheque No. 156749 dated 15-2-2002 became the subject-matter of the C.C. No. 256/OA/NI/2002/I. The said case ended in conviction by judgment dated 23-11-2004. The appeal filed came to be dismissed by the Court of Sessions on 7-6-2005. A revision filed against the same came to be dismissed by this Court by judgment dated 7-6-2006. 3. The cheque No. 082601 dated 15-3-2002 became the subject-matter of C.C. No. 431/OA/NI/2002/F, which ended in acquitta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly the submission that the said letter was produced by the accused in the other case the complainant is allowed to produce the said letter dated 30-4-2002. 8. The complainant examined himself in support of his case and produced the necessary documents including the legal notice and the postal acknowledgments. In the course of cross-examination, the correspondence exchanged between the complainant and the accused, after the said letter dated 15-4-2002, was produced on behalf of the accused. The complainant was questioned on the said letter dated 15-4-2002 and it was put to the complainant that the complainant had given the said letter to the accused authorizing him to deduct a sum of ₹ 1,21,351/- from the balance of ₹ 5,00,000/- due to the accused under the agreement dated 01-10-2001 and the complainant stated that the accused had come to his office at Vasco da Gama on that day and the accused had kept ready the said letter and as the accused said that they would give him ₹ 2,50,000/-, he signed the said letter as he was badly in need of money even though the accused had not paid the said sum of ₹ 2,50,000/-. 9. After the said letter dated 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate Limited. The accused, in his turn, by letter dated 4-5-2002, sent ₹ 5,00,000/- by demand draft, making it clear that it was by way of full and final settlement under agreement dated 1-10-2001. The accused also requested the complainant to send to the accused duly signed receipt for the said sum of ₹ 5,00,000/- and also a letter acknowledging that all amounts payable by the accused to the complainant under the said two agreements were fully paid. The accused also requested the complainant to return the two dishonoured cheques. It may be noted that this letter dated 4-6-2002, was not received by the complainant within two days as stipulated and was in fact received on 7-5-2002 and, therefore, the complainant by letter dated 11-5-2002, returned the said demand draft further alleging that the complainant had suffered losses on various counts in the sum of ₹ 15,00,000/-. 10. The learned CJM referring to the letter of the complainant dated 15-4-2002 (Exhibit 38/C), observed that the said letter showed the conduct of the complainant and the accused after issuing legal notice and therefore was relevant. The learned CJM also held that the said letter dated 15-4-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said letter did not at all refer to the subject cheques issued earlier or the agreements executed earlier and, therefore, it could not have been taken by any stretch of imagination that it was issued by way of modification or alteration of the earlier agreement/s. The suggestions put to the complainant that the complainant had authorised the Accused to deduct the sum of ₹ 1,21,351/- from the balance amount of ₹ 5 lacs due on subject cheque/s cheque/s cheques was not translated by the accused into evidence by stepping into the witness box. Since the accused had not proved that he acted upon the said letter and paid the amount as per the said letter and the same was withdrawn even before it was acted upon, the same could not be taken by way of alteration or modification of the agreement/s earlier entered into between both the parties. The view taken by the learned CJM, will also be incorrect in view of the said letter dated 30-4-2002. 13. The learned Chief Judicial Magistrate entirely lost sight of the fact that the complainant had explained under what circumstances the said letter dated 15-4-2002 came to be issued by him when he was called to the respondents' off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter came to be issued and in the absence of any evidence given to the contrary by the accused. The notice sent by the complainant had remained without being complied till 17-4-2002 and prior to that date, the accused did not think fit to make part payment if according to the accused, the accused was entitled to deduct any amount from the cheques, which the accused had given pursuant to the said second agreement. The learned CJM in the absence of any evidence having been given by the accused, ought to have accepted the evidence of the complainant including the explanation given by the complainant as regards the said letter dated 15-4-2002, which in the absence of any evidence led by the accused, did not at all appear to be improbable. 14. The second point raised by Shri Kholkar is with reference to the judgment of the Apex Court in Suman Sethi v. Ajay K. Churiwal and Anr. 2000 CriLJ 1391, Shri Kholkar has submitted that the complaint in this case was filed on 13-5-2002 but the accused had tendered ₹ 5,00,000/- vide his letter dated 4-5-2002 by demand draft and the accused having tendered the said amount of ₹ 5,00,000/- prior to the filing of the complaint, no offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder in due course to the bank; (3) Returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque. (4) Giving notice in writing to the drawer of the cheque within 15 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount; and (5) Failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice. 16. Needless to observe, all the above requirements or ingredients can be culled out from Section 138 of the Act itself. The last ingredient namely (5) above i.e. is the failure of the accused to make payment within 15 days after service of notice. If payment is made within the said period of notice, then no offence gets committed but in case of failure, the offence is completed. Even if the payment is made on the 16 day the same is not sufficient to come out of the rigours of Section 138 of the Act. In Criminal law, commission of offence is one thing and prosecution f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion to deal with Section 138 of the Act in Central Bank of India v. Saxons Farms AIR 1999 SC 3607, and held that the object of the notice is to give a chance to the drawer of the cheque to rectify his omission. Though in the notice demand for compensation, interest, cost, etc. is also made, the drawer will be absolved from his liability under Section 138 if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before the complaint is filed. 10. In Section 138 the legislature clearly stated that for the dishonoured cheque the drawer shall be liable for conviction if the demand is not met within 15 days of the receipt of notice but this is without prejudice to any other provision of the Act. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under Section 138 will cease and for recovery of other demands as compensation, costs, interest, etc., a civil proceeding will lie. Therefore, it in a notice any other sum is indicated in addition to the 'said amount' the notice cannot be faulted, as stated above. 17. It has been emphasised on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s AIR 2006 SC 258, the Supreme Court has stated that a decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that construes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyze a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates; (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein, nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the accused. The payment was made only after filing of the complaint and which was accepted by the complainant without prejudice to his rights. 20. Lastly, Shri Kholkar submits that the amount of the subject cheque was not due because the accused was entitled to deduct the sum of ₹ 1,21,351/-, and therefore, the amount of the cheque given exceeded the amount payable to the complainant and therefore the accused was not bound to honour the said cheque. Reliance has been placed by Shri. Kholkar on the case of Angu P. Textiles (Private) Ltd. and Ors. v. S.R. Co. (I) 2002 B.C. 99, wherein the Madras High Court has held that if the cheque is for an amount higher, then Section 138 of the Act is not attracted. The above submission of the learned Counsel cannot be accepted. No doubt that the complainant did give the said letter to the accused dated 15-4-2002. The complainant has explained under what circumstances the said letter came to be given to the accused. The complainant subsequently withdrew the said letter by letter dated 30-4-2002. If the accused had rightly understood the said letter as authorizing him to deduct a sum of ₹ 1,21,351/-, nothing prevented the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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