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TMI Blog2018 (9) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... llant that the Respondent/Accused in the instant case is formerly served in the complainant private limited company as Managing Director. Since a sum of Rs. 20,00,000/- was misappropriated by him, the service of the respondent/accused was terminated and thereafter by accepting his guilty the Respondent/Accused issued 4 cheques each for value of Rs. 5,00,000/- in favour of the complainant. Among the four cheques issued, one cheque was honoured and other 3 cheques drawn at ICICI Bank, West Mambalam Branch dated 12.05.2003, 16.05.2003 and 19.05.2003 were presented by the appellant/complainant on 08.10.2003 in his bank M/s. State Bank of India, Small Scale Industries Branch, Nungambakkam, Chennai. Those cheques were returned as unpaid on 09.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said complaint was closed as mistake of fact as the parties concerned entered into compromise. 5.The learned counsel for the Appellant/Complainant would submit that the complainant had discharged the initial burden of proof in proving that in lieu of the legally enforceable debt the cheques in dispute were issued infavour of the Appellant/Complainant. Further among the four cheques issued by the Respondent/Accused, one cheque alone was honoured, the other cheques were dishonoured. So, it could easily be presumed that the cheques were not obtained by using undue influence in the police station. He adds further that within the period of limitation, the statutory legal notice, exhibit P-8 was issued and the same was returned as un-served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trial Court as legally sustainable. To support his contention, the learned counsel for the Respondent/Accused relied on a judgment reported in 2004 3 CTC 573, wherein it is held that though in the postal envelope it was mentioned by the concerned authority that the intimation was served and not claimed it must be averred in the complaint that accused intentionally evaded service of legal notice, if no such averments were found in the complaint, then the complaint suffers infirmity that would lead to acquit the accused from the charges. In the instant case absolutely there is no averment in the complaint as to whether the accused evaded service or not, therefore the case of the Appellant/complainant is legally unsustainable and the appeal mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation as to why the cheques were issued by him in favour of the complainant. Once such a stand is taken by the Respondent/Accused then it is his duty to prove the same in the manner know to law. 10.Here in the instant case no explanation is offered by the Accused as to for what purpose he issued four cheques and for what purpose one cheque alone was allowed to get honored and the other cheques were allowed to get dishonored. 11.Apart from that the stand taken by the Respondent/Accused as if the statutory notice was not properly served upon him cannot be appreciated for the reason that the accused received summons from the court by the same address where statutory demand notice was sent by the Appellant/Accused. So, it is to be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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