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TMI Blog2003 (3) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... ined to prove the transaction and to explain the entries in Exts. D1 and D2. 4. The accused did not dispute the fact that the cheque was issued by him to the complainant. It was admitted that an amount of Rs. 60,000/- was advanced by the complainant for repair of the vehicle of the accused. It was also conceded that there was a stipulation that interest will be payable on the said loan amount of Rs. 60,000/-. It is to discharge this liability of Rs. 60,000 and interest that Ext.P1 cheque was issued by the accused to the complainant. On that aspect there was no dispute. No dispute is raised before me also on that aspect. 5. What then is the defence of the accused? The accused contended that though Ext. P1 cheque was handed over, amounts were paid after the issue of Ext.P1 cheque in pursuance of an understanding towards the liability under Ext.P1 cheque. According to the accused Exts. D1 and D2 kurippu books evidence repayment made by him in instalments towards the liability under Ext. P1. These kurippu books Exts. D1 and D-2 contain the acknowledgements in the hand of the complainant from time to time. It is also admitted before me that the total amount paid and acknowledged u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque was issued. Ext. P1 cheque bears the date 19.9.1993. It has been suggested in evidence that the cheque was issued some time in 1991. The complainant disputes that. But for the moment I shall accept the case of the accused on that aspect. Admittedly the cheque did not and could not have borne the date of the transaction (the date of handing over). On the date when the amount was advanced and the cheque was handed over, the future interest which might accrue was also taken into account and it was thus that the cheque was issued for Rs. 72,750/- even though the principal liability was only Rs. 60,000/- DW1 has no case at all, that the cheque bore the date on which it was handed over though such a vague suggestion is seen thrown at PW1 by Counsel in the course of cross examination. At any rate before me the learned Counsel for the respondent, in response to specific queries, submits that the accused-respondent has no such contention now that the cheque today is not in the same condition in which it was issued--whatever be the date of issue/handing over. 9. It follows that there is no merit whatsoever in the contention that the cheque was not issued for the discharge of a legall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and D2 were taken into account, the accused cannot succeed for the reason that those payments, even if accepted, do not amount to discharge of liability contemplated under Section 138. Still an amount exceeding Rs. 27,000/- (72,750--45,361) remains to be paid even if I accept the plea of discharge under Exts. D1 and D2. 14. Undaunted, the learned Counsel for the respondent contends that Ext. D3 evidences payment of a total amount of Rs. 79,260/-. The plea of discharge must certainly be proved by the accused. Of course the standard which would be applicable to an accused pleading such discharge is not as heavy and as onerous as the initial paramount burden on the prosecution. But at least by the test of preponderance of possibilities and probabilities, as in a civil case, the accused has to discharge his burden to prove payment of the amount due under the cheque. Ext. D3 series are self-serving documents. They do not contain any acknowledgement by the complainant. When acknowledgement was admittedly insisted regarding the payments under Exts. D1 and D2, it would be puerile for a Court to assume that no acknowledgement would have been insisted for the payments made under Ext. D3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Section shall apply unless- (a) the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen, days of the receipt of the said notice. Explanation.--For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability The expression the said amount of money appearing in the section (emphasised above) cannot lead me to the conclusion that Section 138 of the Negotiable Instruments Act will not be applicable in such a situation. Harmonising the purpose and object of the statutory provision, the language employed and the intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that any other ingredient of Section 138 of the Negotiable Instruments Act has not been established. In the absence of contention it is not necessary for me to advert to that aspect in any detail. Suffice it to say that I am satisfied that all ingredients of the offence punishable under Section 138 of the N.I. Act have been established. The accused is liable to be found guilty, convicted and sentenced under Section 138 of the Negotiable Instruments Act. 19. Coming to the question of sentence I have adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the Negotiable Instruments Act in the decision reported in Anilkumar v. Shammy, 1 (2003) BC 547:2002(3) K.L.T. 852. Of course in this case I do not intend to express any final opinion on the question whether Exts. D1 and D2 relate to discharge of the liability under Ext. P1 cheque. Suffice it to say that convincing and satisfactory evidence is not available before Court to establish that the payments received by the complainant under Exts. D1 and D2 do not relate to the liability under Ext. P1. In these circumstances I am of opinion that it is not necessary to invoke the powers under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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