TMI Blog2021 (3) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... t must be admitted or proved that the cheques were issued by the first respondent in discharge of a legally enforceable debt or liability. Here, the first respondent has not admitted the allegations. Whether the appellant could prove that Ext.P1 series were issued in discharge of a duly enforceable debt or liability? - HELD THAT:- The materials brought out in evidence are sufficient to give an answer in the negative. As noticed earlier, the appellant has admitted that the cheques were issued two years before the date of presentation - Secondly, through the Ext.D1 judgment in S.T.No. 288/2007, the learned Magistrate could very much expose the hollowness of the claims of the appellant. That case related to issuance of cheque Nos. 428897 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant in S.T. No. 154/2007, on the file of the Judicial First Class Magistrate - II, Kollam. That complaint was preferred on 22.11.2006 alleging offence punishable under Section 138 of the Negotiable Instruments Act. The subject matter of the complaint is three cheques, drawn on Thiruvananthapuram Main Branch of the Indian Bank, bearing Nos. 428895 dated 02.09.2006, 428898 dated 22.09.2006 and 428899 dated 14.09.2006, all for ₹ 44,200/-. The complainant and accused are sea food merchants. According to the complainant, he collects raw sea food from the fishermen and sells to agents like the accused, who in turn sells the items to exporters. The subject cheques were issued at his house in connection with the fish trade, in discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said finding, the complainant moved this Court, obtained Special Leave and preferred this appeal. 3. I heard the learned counsel for the appellant and also the learned counsel for the first respondent. 4. Relying on the decision reported in APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Others [AIR 2020 SC 945], the learned counsel pointed out that even if the cheques were issued as security, the plea of innocence will not sustain so long as the first respondent has admitted that the cheques were issued by him. The learned counsel also pointed out that the appellant could prove the execution of the cheques and therefore, the statutory presumptions have to be drawn in favour of the appellant; the first respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 313 of the Cr.P.C, he has stated that the subject cheques were issued as security during the fish trade transactions made by him with the appellant. 8. PW1 has also admitted before the Court that Ext.P1 series cheques were obtained by him two years prior to the date of presentation. According to him, the cheques were handed over to him at the office of the first respondent. But in the complaint, it was stated that the cheques were issued at his residence. Similarly, there is substance in the argument of the learned counsel for the first respondent that the complaint and also the statement of the appellant as PW1, do not contain the particulars of the transaction. Whatever it may be, it is very evident from the admission of PW1 that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate has rightly noticed that it is improbable that after dishonoring two such cheques on 12.09.2006, the appellant had accepted, at least two cheques dated 14.09.2006 and 22.09.2006 in Ext. P1 series. 11. Moreover, the proviso to Section 138 of the Negotiable Instruments Act stipulates that the following conditions should be complied with enabling the payee or the holder in due course to initiate action under the Act: a) The cheque has been presented to the bank within a period of six months (prior to 01.04.2012 which is applicable in the present case) from the date on which it is drawn or within the period of its validity, whichever is earlier; b) A demand has been made by the payee by a registered notice within a period of thirt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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