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TMI Blog2015 (11) TMI 1873X X X X Extracts X X X X X X X X Extracts X X X X ..... s validity - The facts of the case show that the amount covered by the cheque is bigger than the cheque amount. A reading of the wordings of the Section shows that the cheque should be given in discharge of a debt either in whole or in part or any liability and if the cheque amount is higher than the debt or liability, Section 138 of the N.I. Act would not get attracted. The presumption of law is that a person is innocent until proved guilty. This means that there is always a presumption of innocence in favour of an accused and the burden to prove the case is on the prosecution. That presumption is available to an accused who is prosecuted under Section 138 of the Negotiable Instruments Act, simply because a cheque happened to be dishonoured itself is not a ground to say that the accused has committed an offence. There may be exceptional cases out side the purview of the Section 138. A debt is a liquidated amount of money owed and payable to another in present or in future which is a pecuniary liability recoverable by action in respect of money or demand. Therefore, Section 138 of the N.I. Act shows not only the debt, but also the liability. A cheque have been issued in discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When the cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the due amount by giving a notice in writing, but after notice, there was no repayment of the due amount, hence he filed a complaint before Judicial First Class Magistrate, Kozhikode. During trial, complainant was examined as PW1 and his documents were marked as Exts. P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Section 313 Cr.P.C. Accused did not adduce any defence evidence. The learned Magistrate convicted the accused under Section 138 of the N.I. Act and sentenced to imprisonment for six months. Against that he preferred Criminal Appeal No. 150/2002 before 1st Additional Sessions Judge, Kozhikode, where the sentence was modified by the Appellate Court. Being aggrieved by that he preferred this revision petition. 2. The main contention advanced by the revision petitioner is that part payment of the debt amount under the cheque was paid to the payee and he has not made any endorsement of that part payment in the cheque. Instead of claiming the balance amount, he claimed the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t due under a cheque was paid, an offence under Section 138 of the Act will be made out or not. There was conflicting decisions of the High Court on this point and thus the matter was referred to the Division Bench for a finality. Court considered certain key issues regarding making of part payment due under a cheque. Court concluded that, if the drawee makes an endorsement regarding the part payment on the cheque and claimed only the balance amount and if it is dishonoured, the offence under Section 138 will be made out. Such a pragmatic view was taken, because any person who makes a part payment which may be very small compared to the amount due under the cheque can escape from the liability. 6. The accepted connotation of interpretation is that penal Statute should be considered strictly and in case of doubt, the benefit will go to the accused. The presumption of law is that a person is innocent until proved guilty. This means that there is always a presumption of innocence in favour of an accused and the burden to prove the case is on the prosecution. That presumption is available to an accused who is prosecuted under Section 138 of the Negotiable Instruments Act, simply be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing it. Thus when there was no material to show that the admission made by the complainant is not in another transaction such admission is valuable in connection with the transaction in this case. In this context, I have examined the evidence of PW 1, who is the complainant in this case. His evidence shows that Ext. P1 was issued in discharge of a debt of Rs. 1,17,500/-. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext. P2 is dishonour memo, Ext. P3 is the pay in slip, Ext. P4 is the intimation, Ext. P5 is the lawyer notice, Ext. P6 is the acknowledgement card and Ext. P7 is the attested extract of the account of the accused. During cross-examination, PW 1 admitted that before institution of the complaint, he received Rs. 35,000/- (Rs. 25,000/- on 02/11/98 and Rs. 10,000/- on 29/12/98). Revision petitioner also paid Rs. 10,000/- and the balance debt amount is only Rs. 72,500/-. In Ext. P5 lawyer notice the amount claimed is Rs. 82,500/-, then the impact of the admission and the failure of the maker or holder of the cheque making endorsement of the part payment was not considered by the Courts below. An admission is a voluntary ackno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part payment on the instrument and he claims the balance amount by presenting the cheque for encashment through a Bank and if it is dishonoured, then an offence under Section 138 of the N.I. Act will be made out. Both the Courts below failed to appreciate the admission made by PW 1 and the documentary evidences which resulted in miscarriage of justice. Therefore, this is a fit case to exercise revisional jurisdiction. While invoking revisional jurisdiction, this Court can rectify the illegalities committed by the inferior Courts. The object of conferring such power is to correct grave miscarriage of justice arising from erroneous orders. In Angu Parameswari Textiles (P) Ltd. and Others v. Sri. Rajam and Co. 2001 Company Cases Vol. (105) 186 Madras High Court held that; For the purposes of Section 138 of the Negotiable Instruments Act, 1881, the cheque should be towards the discharge of either the whole debt or part of the debt. If the cheque is for more than the amount of the debt due, Section 138 cannot be attracted. Here the portion of the cheque was repaid and such payment is admitted by PW1 and no endorsement was made on the back of the cheque or face thereof and on p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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