TMI Blog2021 (9) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... cused is not in dispute. The accused also questioned the capacity of the complainant but the complainant has stated that he is running the business relating to power loom and there is a business contract between them. He used to sell raw silk material to the accused and in this business connection, he has paid money to the accused and in discharging of the loan, the accused has issued a cheque and the same was dishonored. There is nothing to disbelieve the evidence of the complainant and the presumption under Section 139 of Negotiable Instruments Act is available in favour of the complainant and the same was not rebutted by the accused except taking contention that the notice has not been served. The accused account is at Vijaya Bank and the accused Bank has given endorsement of memo directly to the Manager of the complainant's Bank i.e., Karur Vysya Bank for dishonor of cheque due to insufficient funds. Therefore, the Karur Vysya Bank has given the said endorsement to the complainant for having dishonored the cheque. Therefore, there is no need for the complainant Bank to issue one more memo for dishonor of the cheque presented by the complainant. The Bank memo or letter i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 through R.P.A.D. But the accused failed to repay the amount. Hence, he has filed a complaint. 5. After taking cognizance, the accused appeared before the trial Court and pleaded not guilty and to prove the case, the complainant examined himself as PW. 1 and got marked 11 documents and accused got examined himself as D.W. 1 and got marked 5 documents. After closing the evidence, the statement of the accused under Section 313 of Cr.P.C., was recorded. The case of the accused is one of the total denial. After hearing the arguments, the trial Court found the accused not guilty and acquitted. Hence, the complainant is before this Court. 6. Learned counsel for the complainant has contended that the reason assigned by the trial Court while acquitting the accused is incorrect. The trial Court acquitted the accused only on the ground that notice was not served. In fact, the notice was served on the wife of the accused. He has taken evasive defence and the same was believed by the trial Court for acquitting the accused. The trial Court has also taken view that the complainant has no financial capacity and there is no legally recoverable debt and also holding that there is no document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant has proved the case against the accused that he has issued a cheque for discharging his legally liable debt and the cheque was dishonored? 2. Whether the judgment of the trial Court calls for interference? 9. On perusal of the records, the cheque bearing No. 644720 dated 03.01.2011 belongs to the accused. His signature in the cheque has not been disputed and the cheque has been dishonored on its presentation to the Bank. Ex. P. 1 is the alleged cheque; Ex. P. 2 is the Bank endorsement for having dishonored the cheque; Ex. P. 3 is the legal notice of the complainant; Ex. P. 4 is Postal receipt; Ex. P. 5 is certificate of posting; Ex. P. 6 is cash receipt; Ex. P. 7 is certificate issued by the Gas Agency; Ex. P. 8 is acknowledgement letter received from the Post Office for having served the notice; Exs. P. 9 and P. 10 are the letters; Ex. P. 11 is acknowledgement letter of post office. 10. The respondent-accused has taken two main grounds that on legal notice-Ex. P. 3 issued to the respondent-accused not been served and the address is also incorrect. The respondent - accused is residing in some other place. In support of his case, the learned counsel has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of the registered post sent by the complainant has been served on the addressee on 18.01.2011. Ex. P. 11 reveals that the delivery was effected and the same was received by Mamatha-wife of the accused. It is not a case where the notice was not received by the wife of the accused Mamatha but some other person. The post master normally issues certificate for having delivered the items, but, he cannot give any false document to the parties for having served or not served. The examination of the post master is not compulsory as the documents issued by the public servant while discharging their official duty stating that the post has been delivered to the addressee to his name or any members of the family. It is also pertinent to note that the respondent is not only originally a business man but he is a member of the Panchayat. Such being the case, he is a popular person and the post man can easily identify the addressee-R. Ravikumar and it was delivered to his house and the same was received by his wife. If at all the respondent-accused has not received the notice, then he could have examined his wife to disprove the document which is public document that the same was not del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the cross-examination, the complainant has stated that he is having power loom business and selling raw silk materials. Such being the case, the capacity of the complainant for giving any loan to the accused cannot be doubted. 13. Learned counsel for the accused also taken further contention that the Bank of the complainant has not issued any endorsement regarding dishonor of the cheque. The cheque was presented by the complainant to his Bank at Vysya Bank. The accused bank is Vijaya Bank and the cheque was presented at Karur Vysya Bank by the complainant and the same was dishonored due to insufficient funds. The accused account is at Vijaya Bank and the accused Bank has given endorsement of memo directly to the Manager of the complainant's Bank i.e., Karur Vysya Bank for dishonor of cheque due to insufficient funds. Therefore, the Karur Vysya Bank has given the said endorsement to the complainant for having dishonored the cheque. Therefore, there is no need for the complainant Bank to issue one more memo for dishonor of the cheque presented by the complainant. The Bank memo or letter issued by the Vijaya Bank of the accused is sufficient to show that the cheque has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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