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2017 (8) TMI 3 - HC - Indian LawsGrant of Special Leave to prefer an Appeal as against the 'Judgment of Acquittal' - offence under Negotiable Instruments Act - Held that:- In the Complaint, the Petitioner/ Appellant/Complainant had stated that the Respondent/Accused as Surety for the amount to be paid by his wife, had issued a cheque. But before the trial Court, on behalf of the Petitioner/Appellant/ Complainant, it was not established that the Respondent/Accused wife was paid with a sum of ₹ 3,00,000/- through cheque based on Sale Agreement. Further, for the alleged payment of ₹ 1,00,000/- in cash by the Petitioner/Appellant/Complainant to the Respondent/ Accused wife, no document or evidence was produced in the main case. Apart from that, the big question revolves around the Petitioner/Appellant/Complainant is that when he was in possession of Ex.P1 Cheque from 11.2.2015 till 11.4.2015, how the Respondent/Accused (husband of the Komathi) had made correction or alteration in Ex.P1 Cheque. Moreover, P.W.1, in her cross examination, had tacitly admitted that the Respondent/Accused gave Ex.P1 Cheque on 11.2.2015, but he corrected/altered the same on 11.4.2015. She had also proceeded to state in her cross examination in emphatic terms that the Respondent/Accused on 11.2.2015 itself had handed over the cheque to her. Further, in her evidence, P.W.1 had stated that on what date, she had paid a part sum of ₹ 1,00,000/- to the Respondent/Accused wife, which fact was also not mentioned either in her proof affidavit or in the complaint. Indeed, Section 138 of the Negotiable Instruments Act is a Penal Provision which incorporates strict liability and therefore, it has to be construed strictly. In Law, a Cheque can be presented for payment repeatedly any number of times within six months from the date of drawing of cheque or within the period of its validity, whichever expires earlier. The requirement for an offence under Section 138 of the Negotiable Instruments Act is that the cheque must be drawn 'for the discharge, in whole or in part, of any debt or other liability'. However, the Section does not say that the cheques should have been drawn for the discharge of any debt or other liability of the Drawer towards the Payee. Section 138 of the Negotiable Instruments Act does not in any way preclude power of an individual from owning up other person's liability or insist that the cheque should be one drawn to discharge the liability of the Drawer. As per Section 139 of the Negotiable Instruments Act, there is a presumption, unless the contrary is established, that the Holder of the cheque received the cheque for the discharge in entirety or in part of any debt or other liability. Judgment of Acquittal passed by the trial Court is free from any flaw. Consequently, the 'Grant of Special Leave' sought for by the Petitioner/Appellant/Complainant by means of filing the present Criminal Original Petition before this Court under Section 378(4) Cr.P.C. is devoid of merits.
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