TMI Blog2006 (5) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the alleged liability on that count. In order to deem that one had committed offence under Section 138, the amount covered by the cheque shall be either in discharge of the liability incurred by the drawer, either in full or in part. It cannot in any way in excess of the liability incurred. Unless the complainant proves that the liability to be settled is to the tune of the amount covered by Ext.P1, he could not have made use of that cheque for such liability. Therefore, Ext.P1 cheque cannot be stated to be one issued in discharge of the liability to the tune of the amount covered by it, which was really issued, as is revealed by Ext.D1, as the price amount for 28 numbers of mixies, which the complainant had not supplied. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did have at that time towards the complainant. So no case to attract Section 138 had been made out; the accused defended the case. 2. Appreciating the evidence on record the court below found that Ext.P1 cheque was not one issued in discharge of the liability that the accused had incurred towards the complainant. 3. It is submitted by the appellant that going by Ext.D3 and Ext.P8, the accused had admitted liability towards the complainant. In Ext.D3 dated 16.3.1998 the accused had even though intimated the complainant not to present the cheque in question in bank, he had agreed to settle the account later. This is also revealed from Ext.P8 communication issued by the complainant on 12.8.1998 as well. Thus when there was liability inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he had not given the articles ordered and therefore the cheque shall not be presented to the bank. Of course, it contains a further request that settlement of the other transactions could be done later. Thus even before the date of the cheque, the accused had informed the complainant that it shall not be presented to the bank because of the failure of the complainant himself in not supplying the items ordered as per Ext.D1, enclosing there with Ext.PI post dated cheque. Thus it is clear that the accused had not incurred the liability for the amount covered by Ext.P1, a post dated cheque. The statement of account referred to in Ext.D3 in respect of other transactions cannot found to be linked with Ext.P1 cheque. It was issued for a par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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