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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 ..... urse within the stipulated period. Under Section 138(b) of the Accused to issue the notice to the maker of the Instrument. There is major technical defects in the complaint. The legal requirements of under section 138 of Negotiable Instrument Act not followed by the complainant in these circumstances the complainant is failed to establish under section 138 of Negotiable Instrument Act case against the Accused." and resultantly, found the Respondent/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 '361 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 200 Cr.P.C. in respect of an offence punishable under Section 138 of the Negotiable Instruments Act] by the Appellant/Complainant clearly points out that the Respondent/Accused had approached the Complainant and requested to supply chickens to his Hotel at Navalur on 'Credit'. Furthermore, the Appellant/Complainant had accepted the request and supplied chickens to the Respondent/Accused Hotel on 'Credit'. Moreover, 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 statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pertinently makes a meaningful and useful reference to the evidence of P.W.1 (Appellant/Complainant). 17. It is the evidence of P.W.1 (Appellant/Complainant) that he does not possess a licence to run the chicken stall and for the supply of chickens, he used to issue receipt and that daily an order was placed for supply of 20 kilos of chickens and if the order was for a small amount, then, money would be paid for that and 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. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Report' with the Police, in respect of an offence under Section 420 I.P.C. as Bar under Section 142 of the Negotiable Instruments Act is applicable only for an offence under Section 138 of the Negotiable Instruments Act and not for a cheating offence. 24. Moreover, an offence within Section 138 of the Negotiable Instruments Act is complete with the dishonour of cheque, but taking cognizance of the same 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when a person is prosecuted for an offence under Section 138 of the Act is precluded from taking a plea that he had no reason to believe that when he issued the cheque, it may be dishonoured on presentment for the reasons assigned in Section 138 of the Act. 30. It cannot be gainsaid that an offence will be deemed to have been committed only if a 'Drawer of the Cheque' failed to make the 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 separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancillary or incidental one, since the transaction between the Appellant/Accused viz., supply of chickens, the evidence of P.W.1 indicates that the Respondent/Accused had issued the cheque in favour of the Appellant/Complainant towards security 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, 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 entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the Respondent/Accused is a running transaction, the mistake that had occurred in Ex. P3 - Notice pertaining to the cheque number cannot be said to be an ancillary/incidental or irrelevant/immaterial one, because of the fact that the issuance of Cheque - Ex. P1 was not the only one transaction between the parties. Certainly, the incorrect mentioning of the cheque in Ex. P3 - Notice is not fulfilling the requirement under Section 138(b) of the Negotiable Instruments Act. In as much as Ex. P3 - Notice is not in conformity with Ex. P1 - Cheque, as a logical corollary, the complaint filed by the Appellant/Complainant is per se not maintainable in Law. 38. In view of the aforesaid qualitative and quantitative discussions, this Court comes to a consequent conclusion that the Appellant/Complainant had not established his case beyond all reasonable doubt. Therefore, the resultant view taken by the trial Court in finding the Respondent/Accused not guilty and acquitting him under Section 255(1) Cr.P.C. is free from any flaw. Consequently, the Criminal Appeal fails. 39. In fine, the Criminal Appeal is dismissed. The Judgment passed by the trial Court in C.C. No. 76 of 2013 dated 04.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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