TMI Blog2007 (8) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 1,50,000/-repayable with interest at the rate of 24% per year on or before 7-8-1999 and in repayment of the said loan the accused had issued a cheque dated 25-4-2001 for ₹ 4,17,274/-and the said cheque was presented on 8-9-2001 for encashment but was returned dishonoured by intimation dated 10-9-2001 from Centurion Bank Ltd., Panaji, whereupon the Complainant sent the statutory notice dated 17-9-2001 which the accused received on 19-9-2001 but did not comply with the same. The complaint was filed on 12-10-2001. 3. The case of the accused, as can be seen from his statement recorded under Section 313 of the Code of Criminal Procedure, 1973, is that the said cheque was issued by him in blank as collateral security. It was also th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused, submits that the subject cheque for ₹ 4,17,274/-is for an amount which is greater than the amount which was due to the Complainant on 25-4-2001 and therefore the accused could not be prosecuted for bouncing of the said cheque and in this context the learned Counsel has placed reliance on the decision of Madras High Court in the case of Angu Parameshwari Textiles v. Sri Rajam and Co. Acq. D.C.C. 801 wherein the Madras High Court has stated that if the cheque is for an amount which is more than the amount of the debt due, Section 138 cannot be attracted. That was a case where the cheque given was for ₹ 4,68,581/-and subsequently the accused had paid an amount of ₹ 2,00,000/-by demand draft. The Complainant did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udha Manjunath Vernekar v. Mr. Rayaba S. Dessai and Anr.(unreported decision of this Court dated 27-1-2005 in Criminal Revision Application No. 29 of 2004), wherein it was held as under: From the decisions cited on behalf of both the parties and referred to hereinabove, it appears that there is preponderance of judicial opinion in favour of the proposition that when a cheque is issued duly signed by the drawer and the holder completes the same in other respects namely as regards the amount due and the date, the presumption would still be available to the complainant/holder unless the accused shows that the said particulars were filled in without the consent of the accused/drawer. In my view cases like this cannot be termed to be a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, it is pertinent to note that as per the statement of account of the accused produced by the Complainant, as on 8-5-2001, what was due to the Complainant was a sum of ₹ 3,84,330/-and, therefore, the Complainant's statement that it was a mistake in mentioning the figure of ₹ 30,000/-in lieu of ₹ 3,00,000/-, could not be accepted. 9. Complainant's Manager admitted that the accused had carried out interior work for their company to the tune of about ₹ 5,00,000/-to ₹ 7,00,000/-. It was suggested to him that the accused had brought some material for carrying out the said work, a suggestion which he denied. He stated that the charges of the Architect were paid and although he stated that he had record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt the said cheque signed in blank by way of security for the loan and interest. The same position he had reiterated by his letter dated 21-10-2001 and, inspite of that, the Complainant made no averment in the complaint as to what was the reply sent by the accused to the Complainant in answer to the statutory notice sent by the Complainant to the accused. This shows that it is the accused who was consistent in his plea and it is the Complainant who was vacillating in his stand. 11. The Apex Court in M.S. Narayana Menon v. State of Kerala 2006 CriLJ 4607, has stated that once the defence that the cheque was issued by way of security is accepted as probable, the cheque, therefore, cannot be held to have been issued in discharge of a debt a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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