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TMI Blog2018 (3) TMI 1907X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,45,000/-. The said cheque when presented for collection came to be dishonoured for "funds insufficient". 3. The complainant caused a notice dated 18.12.2001. The registered envelope was returned with an endorsement "not claimed". Contending that the notice is deemed to have been served and the accused failed to comply with the demand, the complainant sought action against the accused under Section 138 of N.I. Act. 4. The complainant examined himself before the Court and reiterated the averments made in the complaint and produced in evidence, the original cheque Ex. P-1, the memos issued by the Bank - Ex. P-2 and Ex. P-3, copy of the legal notice - Ex. P-4, unclaimed postal envelope - Ex. P-5 and the copy of the compliant - Ex. P-7. 5. In rebuttal, the accused examined himself as D.W. 1 and took up a plea that he had no transaction whatsoever with the complainant and he did not purchase the alleged household articles from the complainant at any point of time and did not issue the cheque in question to the complainant in discharge of the alleged debt or liability. 6. The Trial Court considered the above evidence and was of the opinion that the complainant failed to produce the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel appearing for the accused has referred to the following judgments: (i) (2006) 6 SCC 39 (M.S. Narayana Menon vs. State of Kerala), (ii) (2010) 11 SCC 203 (Central Bank of India vs. Asian Global Ltd.,) (iii) (2013) 1 SCC 327 (Reverend Mother Mary Kutty vs. Remi C. Kottaran) (iv) LAW (MADRAS) 2004 (7) 128 (Murugan Finance vs. P.V. Perumal) 11. By placing reliance on the above judgments, learned counsel would contend that the specific case of the complainant is that the accused borrowed electronic articles from the complainant and in repayment thereof, issued the cheque in question. The above pleading indicates that the complainant did not have any transaction whatsoever with the father of the accused. The complainant has failed to adduce any evidence in proof of his transaction with the accused and therefore, he cannot now turn around and put forth a plea that the cheque in question was issued in respect of "other liability". The complainant cannot make out a new case. The averments made in the complaint are required to be strictly construed. The complainant has to stand or fall on the basis of the case set up by him. The complainant havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished that the said cheque was issued by the accused. 15. There is no clear evidence as to whether he issued the cheque to the complainant or to the Manikantha Agency. In this regard, I find from the evidence that the accused has taken inconsistent and contradictory stand. As already stated above, in his evidence he has unequivocally stated that the cheque was handed over by him to the complainant as security on behalf of his father. But during his examination under Section 313 of Cr.P.C., he has stated that he handed over the said cheque to the Proprietor of the Manikantha Agency. This inconsistency if analyzed in the backdrop of the fact that the name of the drawer is written by the accused himself, it leads to the only inference that the said cheque was drawn by the accused in the name of the complainant. According to the accused, he issued the aforesaid cheque on behalf of his father as security. 16. The question whether the accused could be held liable for the consequences of the dishonour of cheque issued by him towards discharge of the debt due by his father need not detain us in view of the authoritative pronouncement of the Hon'ble Supreme Court in the case of I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that "11. ......The language of the Statue depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act: 'Any cheque' and 'other liability' are the two key expressions which stands as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legislature......" 18. In the instant case, the accused has admitted that Manikanta Agency was run by his brother and after his death the same business is continued by his father. Further, in his cross-examination, D.W. 1 has categorically stated that, The above evidence clearly goes to show that the accused and his family members are carrying on the business of sale of TV, grinders and furniture through Manikanta agencies. This evidence leads to the inevitable inference that the cheque in question was issued by the accused to satisfy the deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int that the cheque in question was issued by the accused in discharge of 'any debt' or 'other liability'. Accused having admitted the issuance of the cheque, and the same having been drawn in the name of the complainant, the burden of proving that there was no existing debt or liability shifts on the drawer/accused. By drawing the instrument in the name of the complainant, the accused has impliedly entered into an agreement or promise to discharge the debt of his father which is a valid consideration for the accused to issue the subject cheque. Therefore, viewed from any angle, I do not have any hesitation to hold that, in the instant case, the complainant has proved that the cheque in question was issued by the accused in discharge of legally enforceable debt. The said cheque is proved to have been dishonoured for insufficiency of funds. The complainant has complied with all the requirements prescribed under Section 138 of N.I. Act thereby rendering the accused liable for conviction under the said provision of law. 22. The findings recorded by the Court below, in my view, are contrary to Section 138 of N.I. Act. The accused having admitted the issuance of cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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