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TMI Blog2023 (2) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... que which bears the signature of the drawer and that much is undisputed - As per the evidence of Pw.1 and also as per the evidence of Dw.1 there were business transactions between them and both sides stated that each of them was maintaining books of accounts concerning these business dealings. According to Pw.1 towards repayment of what was overdue the accused gave him Ex.P1 cheque. That there was overdue was shown by complainant through Ex.P8 statement of account. Dw.1 during his cross examination verified it and admitted the truth of its contents. Ex.P1 cheque as is available on record bears the date 03.01.2003. Since the date is specifically given and is available on the negotiable instrument by the time it came to be considered by the Courts below there was mandate of the law in Section 118(b) of the Negotiable Instruments Act, 1881 to the affect that the Court shall presume, until contrary is proved, that every negotiable instrument which bears a date was made or drawn on such date. The contrary has to be proved and this presumption has to be dislodged by the one who questions the correctness of the date - there was absolutely no material to think any probability that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent is State. 3. Alleging an offence under Section 138 of Negotiable Instrument Act (for short, 'N.I.Act'), this appellant originally filed a complaint and that was tried by the learned III-Metropolitan Magistrate, Vijayawada as C.C. No. 165 of 2005. After due trial, the sole accused was convicted and was sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 5,000/-with default sentence of simple imprisonment for two months prescribed for it. 4. The aggrieved accused preferred Criminal Appeal No. 235 of 2005. After due hearing, the learned VIII-Additional District and Sessions Judge (Fast Track Court), Vijayawada vide judgment dated 23.01.2007 found the accused not guilty and acquitted him by setting aside the judgment of the trial Court. 5. Against such judgment of acquittal this criminal revision is filed by the complainant. 6. Facts leading to the present revision are required to be noticed now:- Two trading partnership firms have been in business transactions concerning pesticides. The complainant was selling pesticides on cash basis as well as credit basis and the accused used to purchase pesticides on credit basis. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 in his cross-examination admitted the truth and correctness of contents of Ex.P8. Thus, the trial Court recorded a finding that there was subsisting liability on part of accused to a tune of Rs. 2,67,452=92 paise. It then stated that as per the evidence of Pw.1, demanding repayment of that account overdue a notice was sent by complainant to the accused but accused did not repay. During trial, accused pointed out that a copy of such notice was not exhibited before the trial Court. Trial Court, it seems, thought it un-necessary to have that copy of notice for the purpose of case at hand. It then recorded an observation that, after several demands accused had given Ex.P1 cheque for Rs. 2,60,000/-to the complainant and banker returned it as evidenced by Exs.P2 and P3 on the ground that funds in the account of accused were insufficient. Thereafter the original of Ex.P4 notice was sent by complainant and Ex.P5 postal receipt indicates its dispatch by way of registered post and Ex.P6 indicated dispatch of it under certificate of posting. Since within 15 days' time granted accused failed to repay the cheque amount it found the accused guilty for the offence under Section 138 of N.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter the learned first appellate Court held at para 13 of its judgment that Ex.P1 cheque was materially altered and that it was not issued on 03.01.2003 and therefore the presumption raised under Section 139 of N.I.Act stood rebutted and benefit of doubt was to be given to accused and accordingly it acquitted the accused. 11. As against that acquittal judgment, learned counsel for complainant/revision petitioner argued that the signature on Ex.P1 cheque was admitted by the accused during his cross-examination. The accused did not argue about difference in ink in filling up of the cheque and the first appellate Court ignored to read the entire evidence available on record and failed in considering the facts and circumstances and rendered its judgment against the facts and law and in fact there was no basis to surmise that Ex.P1 cheque was given in blank. For these reasons, the revision shall be allowed and the accused shall be convicted by restoring the judgment of the learned trial Court. 12. For Respondent No. 1/accused appearance was made through his learned counsel and when the matter was coming up for hearing on several earlier occasions time was prayed for argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is legitimate handing over of the cheque which bears the signature of the drawer and that much is undisputed. 16. As per the evidence of Pw.1 and also as per the evidence of Dw.1 there were business transactions between them and both sides stated that each of them was maintaining books of accounts concerning these business dealings. According to Pw.1 towards repayment of what was overdue the accused gave him Ex.P1 cheque. That there was overdue was shown by complainant through Ex.P8 statement of account. Dw.1 during his cross examination verified it and admitted the truth of its contents. Thus as per Ex.P8 and the oral evidence on both sides the amount that was finally arrived it in Ex.P8 was the amount that was overdue from the accused to the complainant. Showing that, this amount was repaid no evidence was brought on record by the accused. He merely stated that he repaid it. He did not furnish the date of payment, mode of payment and place of payment. He did not produce his books of accounts to show that he had paid it and closed the account. Therefore, the fact that he failed to pay is the only conclusion that was possible and in fact trial Court rightly arrived at such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bir Singh vs Mukesh Kumar 2019 (4) SCC On Line SC197. Their Lordships considered Sections 20, 87, 139 of the Negotiable Instruments Act and held that all these provisions make it amply clear that a person who signs a cheque and makes it over to the payee remains liable even if it was a signed blank cheque leaf given by the drawer and it was filled up by any person other than the drawer. In Womb Laboratories Private Limited vs Vijay Ahuja 2019 SCC On Line SC 2086. The Hon'ble Supreme Court of India held that, handing over of the cheque by way of security per se would not extricate the accused from the discharge of liability arising from such cheques. In Sripati Singh vs State of Jharkhand 2021 SCC online SC 1002. In this case their Lordships of Supreme Court of India held that security given for a loan is something given as a pledge of payment. It is given to make certain fulfilment of an obligation to which the parties to the transaction are bound. In the absence of prior discharge of liability and if the liability is subsisting, cheque given as security will bring all the penal and legal consequences. 19. In the light of above legal principles and the evidence available ..... X X X X Extracts X X X X X X X X Extracts X X X X
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