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TMI Blog2016 (12) TMI 1906X X X X Extracts X X X X X X X X Extracts X X X X ..... for the outstanding amount. At this stage, this Court aptly points out that if the cheques were issued not for discharge of any debt or liability, but they were issued by way of security, the Applicant could not be held liable under Section 138 of the Negotiable Instruments Act. An entry in an account is a self serving one as it is an admission by the maker thereof, in his favour. The crucial test would be whether the entries in a particular account are honest or otherwise. An account book is to be established by a person who had written it and if he is alive or by some other person who is competent to speak about its veracity/genuineness. It cannot be gainsaid that before an extract from 'Account Book' is admitted in evidence, it must be legally proved. In the instant case, even though the Appellant/Complainant, at paragraphs 8 12, in the complaint, had mentioned the cheque number as '361868' and mentioned the cheque number incorrectly as '361838' in Ex. P3 - Notice, this Court is of the considered view that there is no mist or cloud or shroud or any manner of simmering doubt in regard to the language employed in Section 138 of the Negotiable Instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accused not guilty and acquitted him under Section 255(1) Cr.P.C. 3. The Learned Counsel for the Appellant/Complainant submits that the trial Court should not have acquitted the Respondent/Accused in spite of the fact that all the necessary ingredients of an offence under Section 138 of the Negotiable Instruments Act are made out. 4. The Learned Counsel for the Appellant contends that the Appellant/Complainant while proceeding with the process of filing complaint under Section 138 of the Negotiable Instruments Act at the time of issuing the notice, mistakenly typed the cheque number. It is further represented that in Ex. P3 - Legal Notice dated 17.04.2013 the number of the cheque was mentioned as '361838' instead of '361868' and the said error is a typographical one, but the trial Court had acquitted the Respondent/Accused based on the reason that the cheque number was mentioned wrongly. 5. The Learned Counsel for the Appellant takes a plea that the Respondent/Accused had received Ex. P3 - Legal Notice, but had not issued any reply. At this stage, it is represented on behalf of the Appellant/Complainant that in case the Respondent/Accused had given a reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the Appellant/Complainant had stated in his complaint that for running the balance amount payable by the Respondent/Accused to him, the Respondent/Accused had issued a cheque bearing No. 361868 dated 22.03.2013 drawn on Indian Bank, Tambaram Branch for a sum of Rs. 6,00,000/-. When the said cheque was deposited dated 22.03.2013 with the State Bank of India, Uthandi Branch, Chennai - 600 119 for a sum of Rs. 6,00,000/-, the cheque got returned unpaid, with an endorsement 'Exceeds Arrangement' and the same was informed by the Appellant/Complainant's banker on 23.03.2013. 11. The stand of the Appellant/Complainant (as seen from the complaint) is that within 30 days from the date of receipt of intimation from the Bank he issued a statutory registered notice dated 17.04.2013 - Ex. P3 calling upon the Respondent/Accused to pay the cheque amount of Rs. 6,00,000/- within 15 days from the date of receipt of notice etc. The said notice was received by the Respondent on 19.04.2013. 12. The plea taken on behalf of the Appellant/Complainant is that even after the lapse of 15 days i.e. from 19.04.2013 till 10.05.2013 the Accused had neither paid the said sum of Rs. 6,00,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if the order was for higher amount, then, a cheque would be given and for the supply of chickens to his customers, he used to write account for the amount paid by them. 18. P.W.1 in his evidence proceeds to depose that it was correct to state that in the complaint filed by him, he had not mentioned which year and to what extent the order was placed and even in his sworn statement, he had not mentioned it and for the amount of Rs. 6,00,000/- to be paid by the Respondent/Accused, he had not filed any document other than the cheque, he would give receipt in the name of his shop to his customers. 19. P.W.1 (in his cross examination) had stated that for the chickens supplied to the Respondent/Accused every month based on the order, he had not issued the receipt. Also, P.W.1 had added in his evidence that around 2013, the Respondent/Accused had paid him a sum of Rs. 2,00,000/- and in the Legal Notice sent by him to the Respondent/Accused, he had mentioned the Respondent/Accused is to pay a sum of Rs. 9,25,000/-. Moreover, he had stated that for each and every transaction, he has receipts. 20. Apart from the above, it is the evidence of P.W.1 that he does not know to read and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any Court is prohibited so long as the Complainant does not have any 'Cause of Action' to file a complaint as per clause (c) of the proviso read with Section 142 of the Negotiable Instruments Act. 25. It cannot be brushed aside that if there is a structural defect in Cheque, an offence under Section 138 of the Negotiable Instruments Act is not made out. After all, the 'Cause of Action' is therefore, the non-payment of money to the Payee within 15 days of receipt of Notice by which demand for payment of the said money was made. That demand has to be made under Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act, in the considered opinion of this Court. 26. In fact, the aim of issuance of notice is to provide a prior intimation about action to be taken against an individual on whom the notice is served. However, if the purport of notice suffers from mist, shroud/cloud and if one is not able to reasonably decipher, then, it will not enure to the benefit of a Complainant. Further, Section 138 of the Negotiable Instruments Act being a technical offence all the requisite technical formalities ought to be complied with as per Section 138 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment within 15 days of receipt of notice. As per definition Section 2(n) Cr.P.C. the term 'offence' includes not only performing a possible act, but by omitting to do something as well. The pivotal fact one has to bear in mind is that the 'Cheque' was drawn for discharge in full or part of liability, if this is not traversed in the complaint, then, it is a fatal one. The strict liability under Section 138 of the Negotiable Instruments Act can be enforced only when the cheque was issued in discharge of any 'Legally Enforceable Debt' or other liability partly or in entirety. No wonder, the cheque ought to be issued in respect of either past or an existing debt or other liability as the case may be. 31. It is not necessary for an Accused to let in evidence separately or to enter into the witness box and it is just enough if he can successfully gather requisite materials from the Complainant side which would amply disprove the presumptive facts, especially in relation to a pre-existing of legal liability or the debt for discharge of which the cheque in question was issued. 32. It may not be out of place for this Court to make a pertinent mention that S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, but they were issued by way of security, the Applicant could not be held liable under Section 138 of the Negotiable Instruments Act, as per decision Jitendra Singh Flora v. Ravikant Talwar, [2001] 2 Crimes 534. 35. In so far as the 'Writing of Accounts' by P.W.1 (Appellant/Complainant), it is to be pointed out that as per Section 34 of the Indian Evidence Act, 1872 entries in 'Books of Accounts' regularly kept in the course of business are relevant, although it may not be adequate enough to charge any one with liability, in the considered opinion of this Court. Also that, there cannot be any certain form of 'Books of Accounts'. An entry in an account is a self serving one as it is an admission by the maker thereof, in his favour. The crucial test would be whether the entries in a particular account are honest or otherwise. An account book is to be established by a person who had written it and if he is alive or by some other person who is competent to speak about its veracity/genuineness. It cannot be gainsaid that before an extract from 'Account Book' is admitted in evidence, it must be legally proved. 36. Furthermore, in the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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