TMI Blog2020 (6) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... . SRI.KURIAN JOSEPH (ARAKKUNNAM) OTHER PRESENT: PP - SRI. C.K. PRASAD ORDER 1. This revision petition has been filed aggrieved by the concurrent findings of guilt, conviction and sentence. Revision petitioner is the accused in a private complaint. 2. First respondent/ complaint's case in short is as follows : Revision petitioner/accused borrowed an amount of ₹ 1,00,000/- from the first respondent/complainant and in discharge of the same, the revision petitioner/accused (hereinafter referred to as the accused) issued cheque No.278421 dated 21.3.2001 drawn on Vysya bank, M.G.Road branch. On presentation of the cheque it was dishonoured as per memo dated 22.3.2001 for the reason 'payment stopped' by the drawer. Thereafter the first respondent/complainant (hereinafter will be referred as the complainant) issued registered notice for which a reply was sent raising untenable contentions. Since the amount was not paid within the statutory period, the complaint was filed. 3. The complainant got himself examined as PW1 and Exts.P1 to P6 were marked from the side of the complainant. The accused was examined as DW1 and Exts.D1 to D8 were marked from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the accused and issue of Ext.P1 cheque in discharge of the liability. He has been returned from gulf and the accused is a film distributor and the monetary transactions between them are admitted. 8. The dispute is with regard to the actual amount borrowed and the period during which it was borrowed. According to the accused, on 17.3.1999 ₹ 5000/- was borrowed and on 14.10.1999 ₹ 10,000/- was borrowed and he repaid the amount of ₹ 15,750/- on 2.3.2001. According to him, the entire liability has been discharged. To prove the above contention, the accused mainly relies upon Ext.D6, the account book. 9. The learned counsel for the accused also took my attention to Ext.D7 lawyer notice sent by the accused prior to the issuance of Ext.P4 lawyer notice sent by the complainant. In Ext.D7 notice the accused has given a detailed narration regarding the alleged borrowal of ₹ 5000/- on 17.3.1999 and ₹ 10,000/- on 14.10.1999 and receipt of blank signed cheques, stamp paper, signed white paper etc, by the complainant from him. It is also contended that in spite of repayment of the entire amount, the cheques were not returned and in Ext.D7 notice it is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or any endorsement on Ext.D6 book from the complainant. Merely because the complainant admitted about the availing of the amount and pleaded ignorance of the date on which the amount was borrowed, when a question was put to him regarding availment of ₹ 5000/- and ₹ 10,000/- on the two separate dates, it will not lead to an inference that the entire case put forward by the accused is proved by that admission. 14. Both the courts below were not inclined to accept Ext.D6 as an account book kept in the regular course of business. In this context, the learned counsel for the complainant took my attention to an observation made by the learned magistrate with respect to Ext.D6 wherein it has been specifically stated in page No.5 paragraph No.19, that it has been prepared recently. So also it is not produced before any authorities prescribed under law and it is also not of the financial year. 15. On a close scrutiny of the evidence adduced from the side of the complainant and the accused in this case, what could be deducted is that the accused unlike in other cases, moved a step further and created documents so as to support the contention put forward by him. All the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment that service of notice of demand is a condition precedent for filing a complaint for an offence under Sec.138 of the N.I.Act and it is also stated that a demand for payment of the amount of the cheque by sending a notice in writing is sine qua non for filing such a complaint and in the notice demand has to be made for the cheque amount and if no such demand is made, the notice would fall short of its legal requirement. 19. In this case, notice has been issued within the 15 days and there is specific demand of the amount also and hence notice sent is perfectly legal and proper. 20. The learned counsel also took my attention to Ramachandran S. v. B.Bhanuvikraman Nair (2017 (5) KHC 75) wherein it has been held that admission of signature in the cheque will not be sufficient to prove the execution of the cheque. It is also held that admission of signing of blank cheque leaf is not admission of receiving any amount from the complainant or that the accused issued cheque to the complainant and the complainant is bound to adduce evidence to prove execution of the cheque. 21. In this case it is to be noted that the case of the accused is not of total denial. He has set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ext.D7 notice alleging the above facts and as it has been found already in the previous paragraph, the defence so set up by the accused cannot be accepted as true and hence discarded. So the evidence adduced by the accused was not sufficient to rebut the presumption that is available in favour of the complainant under Secs 139 and 118 of the N.I.Act. 24. More over the learned counsel for the respondent complainant would take my attention to the fact that before the presentation of the cheque, the accused gave request for 'stop payment' and Ext.P2 dishonour memo proved that cheque was dishonoured for the reason that the payment was stopped by the drawer. Ext.P6 the certified extract of the account of the accused kept in the bank would also prove that there was no sufficient fund in the account of the accused while presenting Ext.P1 cheque for collection. So fully knowing about the presentation of the cheque for encashment by the complainant, accused has issued direction to the bank for 'stop payment' also. In this context the learned counsel took may attention to Vasanthakumar T. v. Vijayakumar (2015 (4) KHC 4332). On going through the above decision it appea ..... 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