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TMI Blog2019 (12) TMI 1666X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 and D.W. 2 together, it could be reasonably inferred that liability of D.W. 2 to the complainant was at the most for an amount of Rs. 30,000/-. This is what was recorded in the agreement itself going by the testimony of D.W. 2. The execution of agreement is not denied by P.W. 1 also. In my view, in the absence of complainant producing the agreement and showing that the amount actually settled as per the agreement was Rs. 1,30,000/-, the evidence of D.W. 2 alone must be preferred. The burden in this respect is only on P.W. 1 especially because the evidence on record has shown that his alleged financial transaction with accused was untrustworthy. This burden was not discharged by the complainant. What emerges from the entire materials on record is that a blank cheque came to the possession of P.W. 1 which he filled up making it appear that it was delivered for discharge of liability larger than what the accused had undertaken for her husband. If this is the actual position, the presumption of consideration arising under Section 139 of the N.I. Act cannot attach to Ext. P1 blank cheque nor can it help the complainant to contend that the issue of cheque was in discharge of entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the office of C.I. of Police, Nilambur, and it was later repaid also. 4. The court below after appreciating the contentions of both parties and analysing the evidence, circumstances and probabilities of the case held that complainant failed to prove that accused had any financial transaction with him. It was held that the probabilities of the case indicated that the disputed money transaction was only between P.W. 1 and D.W. 2. Inasmuch as the alleged transaction with accused was not proved, it was held that Ext. P1 cheque cannot be considered as having been issued in discharge of legally enforceable debt incurred by the accused and therefore the prosecution under Section 138 of the N.I. Act cannot sustain against her. On this finding, the impugned order of acquittal was passed. 5. I heard the learned counsel for the appellant and also the learned counsel for the first respondent, accused. 6. It is contended by the learned counsel for the appellant that the court below failed to read the evidence in its correct perspective and came to an erroneous conclusion that the real transaction was between P.W. 1 and D.W. 2. It was also argued that even if it was assumed for a moment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the transaction covered by Ext. P1 cheque and consequently an agreement was also arrived at between them. He admitted that he also signed the agreement. 9. According to D.W. 2, the agreement was signed by him admitting his liability only to the extent of Rs. 30,000/- and he later repaid the amount also. But according to P.W. 1, the agreement was signed for the entire cheque amount of Rs. 1,30,000/-. This agreement was not produced in court by either parties. When D.W. 2 was cross-examined, the suggestion put to him was that the agreement was manipulated by him. But I find that this suggestion is against P.W. 1's own evidence that there was an agreement and he too signed it in the presence of C.I. of Police, Nilambur. 10. D.W. 2's evidence discloses that he had demanded loan from P.W. 1 in the month of September, 2003. But he was given a cheque for Rs. 15,500/- after P.W. 1 receiving Rs. 500/- as commission and advance interest of Rs. 2,000/- each for two months. His total liability to P.W. 1 was quantified as Rs. 30,000/- in the presence of C.I. of Police, Nilambur and that is how an agreement undertaking to discharge the liability came to be executed. This testim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irected to be paid is called the payee . The definition does not stipulate that he should necessarily be a person having had direct dealing or financial transaction with the drawer. The 'payee' is a person to whom or to whose order money is made payable by the instrument. Payee therefore could be any person whom the drawer of cheque may, to his choice, refer to his banker, no matter the drawer has not incurred any liability to the person named by him in the cheque. Section 138 of the N.I. Act does not demand that drawer should have had transaction or dealing with the payee in whose name the cheque was drawn. Therefore the accused cannot escape from the prosecution for the offence under Section 138 of the N.I. Act only because the real money transaction was between her husband and complainant. I have already held that the probabilities of the case have indicated that issue of Ext. P1 cheque was in discharge of her husband's liability to P.W. 1. 14. But question that arises is whether she could be charged with criminal liability if she could show by materials on record that the liability of husband undertaken by her was for a much lesser amount than what was shown ..... X X X X Extracts X X X X X X X X Extracts X X X X
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