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TMI Blog2022 (1) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... ments in the complaint is as follows: The appellant is a partnership firm engaged in the business of sale of various kinds of paper products. The 1st respondent/accused used to purchase various products from the appellants herein. The aforesaid purchases are used to be made by the 1st respondent on credit basis. Towards the value of goods so purchased on credit basis, the 1st respondent issued a cheque for Rs. 6,68,318/- and on presentation of the said cheque, it was returned by the bank on the reason "funds insufficient". Statutory notice was sent to the 1st respondent on 08.03.2011. The 1st respondent did not pay the cheque amount but sent a reply notice stating that the cheque was issued as security for the transaction with the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected the contentions of the appellant, without considering any of the said materials. In such circumstances, the learned counsel prays for setting aside the impugned judgment and allowing the complaint by imposing proper punishment to the 1st respondent herein. 7. On the other hand, the learned counsel for the 1st respondent would contend that the learned Magistrate passed a reasoned order by specifically referring to all the materials produced before the court. None of the said findings are unsustainable and no interference is warranted. 8. On going through the findings entered into by the learned Magistrate, it can be seen that one of the reasons for dismissing the complaint was that the Power of Attorney which is marked as Ext. P8 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of Rs. 6,68,318/- in discharge of his liability. However, in Basheer K.V. v. C.K. Usman Koya and Another [2021(2) KLT 567], a Division Bench of this Court considered this question and it has been clearly held that it is not required to disclose full details of the transaction in the statutory notice. In the light of the same, that finding is also not legally sustainable. 10. Another ground of dismissal was that the signature and the other entries in the cheque were seen entered into in different inks and from the same, the conclusion that was arrived at by the learned Magistrate is that, it was not the 1st respondent who wrote the amount and date shown in the cheque and hence the execution of cheque is not proved. However, the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration." In the light of the principles laid down in the said judgment, once the accused admits the signature, the fact that the other entries contained therein are in different hand writing or ink, is not very much material. 11. Another serious dispute is relating to the exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the 1st respondent herein. When considering the entries contained in Exts. P6 and P7, I find some force in the contention put forward by the learned counsel for the 1st respondent. In the entries contained in Ext. P7, the total amount mentioned is Rs. 5,77,028/- and it is for the transaction as on 31.01.2011. On the other hand, the amount mentioned in Ext. P6 contains certain other entries for the period up to 04.03.2011. However, in the entry in respect of 02.03.2011, it is shown that an amount of Rs. 91,290/- has been added to the arrears of the 1st respondent, as interest at the rate of 24%. However, any of the documents produced by the appellant or the averments in complaint or the evidence of PW1 would not indicate any authority ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng this complaint. In such circumstances, in the absence of any specific understanding arrived at between the parties enabling the appellant to collect interest at the rate of 24%, it cannot be concluded that the amount mentioned in Ext. P1 cheque reflects the actual amount of legally enforceable debt. In such circumstances, it cannot be safely concluded that the offence under Section 138 of the Negotiable Instruments Act has been made out. 13. It is also a relevant aspect in this regard that, in K. Prakashan v. P.K. Surendran [2007 (4) KLT 502], the Honourable Supreme Court after referring to the judgment in M.S. Narayana Menon alias Mani v. State of Kerala and Another [ (2006) 6 SCC 393], it was observed as follows: "It is now trite th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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