TaxTMI 
TaxTMI 
2023 (4) TMI 1008
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....onkar for the Respondent No. 1-accused. 2. Learned Advocate Dr. Warunjikar with all his experience and articulation tried to convince me that statutory notice prior to lodging of prosecution under Section 138 of the Negotiable Instruments Act was given in time. Even on some occasion his colleagues Mr. Aditya Kharkar, Mr. Siddhesh Pilankar also tried their level best to convince me. However to the misfortune of the Appellant, their arguments though attractive have not convinced my conscious. Hence I have no alternative but to dismiss the appeal. 3. The Court of the JMFC Court No. 9, Pune as per judgment dated 27/01/1999 was pleased to acquit the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. The tr....
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....Complainant Exh. 38. 4) Date of memo - 24/01/95 (Exh. 37) 7. So the issue is whether the documentary evidence can be considered to presume those dates mentioned therein (without there being foundation in the avernments in the complaint/evidence of the Complainant) According to learned Advocate Dr. Warunjikar the period of 15 days prescribed as per proviso (b) to Section 138 of the Negotiable Instruments Act will start from receipt of the written information from the bank by the payee entry in account extract. For ascertaining the correctness of the findings, certain facts need to be stated. They are as follows :- Evidence of Complainant a) The complainant is a tenant in respect of the shop which is owned by the father of the accuse....
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....ank on 11/11/1994. (iii) Cheque return memo is of 24/01/1995 Exh. 37. (iv) Reason for dishonour is refer to drawer. It is meant as insufficient balance as explained by the witness. v) He has produced extracts of the account in the name of the accused at Exh. 38. 9. Learned Advocate Dr. Warunjikar emphasized on certain answers given by him during cross-examination. The relevant are as follows:- a) Practice of taking entries in the register as soon as cheque is deposited. b) Service charges are to be recovered from the customers, if the cheque is returned. c) Extract of the account shows that cheque was returned on 14/11/1994. d) Cheque does not bear the date of its deposit. e) Once the cheque is returned, entry is ta....
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....8 shows that cheque is returned on 14/11/1994 (Rs. 20/- is debited in his account). 15. It is important to note that the Complainant has not stated anything about second time presentment and he has not said anything about getting knowledge of said dishonour after 14/11/1994. His evidence is silent on that aspect. So on the basis of debit entry of Rs. 20/- dated 14/11/1994 can we infer that cheque was presented? It cannot be accepted because simply on the basis of the certain entries in the documents when there being no foundation in the evidence of Complainant, the Court cannot draw an inference. Furthermore, even if we presume that his debit entry dated 14/11/1994 pertains to deposit of the cheque in question, whether notice was given wi....
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....plainant on 24/01/1995. The accused tried to bring on record about relationship of the Complainant and the bank witness. There is nothing wrong if they are knowing each other because Complainant is their customer. It has furthermore testified during cross-examination that the both are resident of the same village. 19. Learned Advocate for the Respondent relied upon the judgment in the case of Kamlesh Kumar Vs. State of Bihar and Anr. AIR 2014 Supreme Court 660. Learned Advocate Shri Kharkar for the Appellant tried to differentiate facts of that case and the present facts. In that case cheque was presented on two occasions and notice was issued from the date of knowledge of the dishonour and it was issued in pursuance of the second presentm....