TaxTMI 
TaxTMI 
2021 (4) TMI 36
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....2010 of the Judicial First Class Magistrate Court-III, Nedumangad was reversed and he was acquitted. 2. The proceeding was initiated by the appellant, the Nedumangad Housing Co-operative Society Ltd. T-384, represented by its Secretary, by preferring a complaint before the trial court. The allegation in the complaint is that, the accused, 2nd respondent had issued a cheque in favour of the appellant for Rs. 22,890/-, in discharge of a legally enforcible liability, drawn on Nedumangad branch of the State Bank of Travancore. When the cheque was presented for encashment through the Nedumangad branch of the District Co-operative Bank, it was returned on 22.01.2008 due to insufficiency of funds. Thereafter, the appellant caused to issue a lawye....
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....sing the finding of guilt, and the 2nd respondent was acquitted. That finding has been called in question by the complainant after taking leave of this Court under Section 378(4) of the Cr.P.C. 5. I heard counsel on both sides. The trial court records were summoned and perused. 6. The learned counsel for the appellant/complainant has disputed the findings of the learned Sessions Judge. According to him, the 2 nd respondent has not disputed the document in question, namely the Ext.P3 cheque, which was issued in discharge of a legally enforcible liability. The 2nd respondent is a member of the housing society; he had subscribed a scheme for the renovation of his house and drew Rs. 18,500/- agreeing to repay the same in monthly instalments. ....
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.... 7. On the other hand, the learned counsel for the 2 nd respondent strongly supported the finding of the learned Sessions Judge. According to him, there are inconsistencies in the versions of PWs 1 and 2. Though the scheme had ended in 2005, it is not known as to how a cheque could be issued in 2008 as alleged by the appellant. The appellant could not prove that he is entitled to draw the presumptions under Sections 118 and 139 of the Act. In order to rebut the presumptions, the accused need not enter the box or adduce evidence. The entire circumstances brought out in evidence are sufficient to disbelieve the version of the appellant/complainant. Similarly, the failure of the appellant to produce the statement of accounts also is relevant. ....
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....s presented for encashment, it bounced due to insufficiency of fund. Then the 2nd respondent was notified by sending a lawyer notice, which was not replied. Thus a cause of action for prosecution arose and that was how the appellant moved the trial court with a complaint alleging offence punishable under Section 138 of the Act. 9. After considering the rival contentions and evidence, the learned Magistrate upheld the arguments of the appellant. It was noticed that, the execution of the cheque was admitted; similarly, he had failed to prove the plea of discharge and since it was contended that the cheque was issued as security; both the arguments were not acceptable to the court and the learned Magistrate proceeded to convict the 2 nd respo....
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....e 2 nd respondent had defaulted monthly repayments and amounts had fallen in lump towards repayment of monthly instalments due to the society. Then the 2nd respondent reached the society and handed over the Ext.P3 cheque, which version cannot be ignored. The Ext.P2 document reveals that he had received an amount of Rs. 18,500/- in the scheme on 05.03.2005. The consideration shown in Ext.P3 is the amount outstanding, together with interest accrued. This fact cannot be eschewed for the mere reason that the statement of accounts was not produced by the appellant. 12. As noticed by the trial court, the appellant, after not denying the execution of the document, has taken up a plea of discharge. It is trite law that when a plea of discharge is ....
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....ow:- " 37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, S.20, S.87 and S.139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S.138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in i....