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2018 (3) TMI 1980 - GUJARAT HIGH COURTDishonor of Cheque - it is submitted that on the due date, the debt was of a lesser amount then the amount of the cheques which were dishonoured - whether the criminal proceedings should be quashed? - section 138 of the NI Act. What the expression "amount of money‟ means in a case where the admitted liability of the drawer of the cheque gets reduced, on account of the part payment made by him, after issuing but before the presentation of cheque in question? HELD THAT:- The drawer of a cheque may make payment of a part of the amount of the cheque only with a view to circumvent and get out of his liability under Section 138 of Negotiable Instrument Act. But, this can easily be avoided by payee of the cheque, either by taking the cheque of the reduced amount from the drawer or by making an endorsement on the cheque acknowledging the part payment received by him and then presenting the cheque for encashment of only the balance amount due and payable to him. In fact, Section 56 of Negotiable Instrument Act specifically provides for an endorsement on a Negotiable Instrument, in case of part-payment and the instrument can thereafter be negotiated for the balance amount - it is not open to the complainant to take the plea that the drawer of the cheque could have escaped the liability by paying the actual amount due from him to the payee of the cheque. In order to make the notice legal and valid, it must necessarily specify the principal amount payable to the payee of the cheque and the principal amount demanded from the drawer of the cheque should not be more than the actual amount payable by him though addition of some other demands in the notice by itself would not render such a notice illegal or invalid. In the decisions, R. Gopikuttan Pillai [2003 (3) TMI 771 - KERALA HIGH COURT] and M/s. Thekkan & Co. [2003 (6) TMI 473 - KERALA HIGH COURT] the court took the view that even if the accused has made part payment and the complainant has acknowledged the same, the same will not be sufficient for the accused to exonerate himself from his liability under section 138 of the N.I. Act. To put it in other words, an accused who has made the part payment, will not be entitled to raise the same as a defence in a prosecution under section 138 of the Act. The criminal proceedings initiated by the complainant against the writ applicants deserve to be quashed - Application allowed.
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