TMI Blog2022 (9) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... 087108 dated 27.11.1989 and Exhibit 6/6 is a cheque bearing no. 087109 dated 28.11.1989. All these four cheques were issued by the accused in favour of the complainant in the year 1989. Surprisingly the disputed cheque bearing no. 087110 in the next cheque in the cheque book was allegedly issued on 21.07.2004. It is thus found that after the cheque being Exhibit 6/6 was issued, the next cheque in the same Cheque Book being disputed cheque marked as Exhibit 1 was issued after fifteen years. This is totally unbelievable and as such the said fact totally supports the case of the accused respondent and also supports all the contention of the accused respondent that the cheque was handed over to the complainant as a security and was not issued to meet off any legally enforceable debt or any other liability towards the complainant. The presumption against the accused in respect of the said cheque could not be proved in view of the evidence as discussed. Considering the materials on record this Court finds that it has been clearly proved before the Court that the accused respondent s bank account was closed in the year 1990 and his business was also closed in the same year. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on United Bank of India, Barakar Branch, Burdwan. The said cheque was signed by the accused being the proprietor of M/s Gopal Radio Mart. That the complainant presented the said cheque for encashment with the banker, Standard Chartered Bank, Barakar Branch, Burdwan within its validity period but the said cheque was dishonoured and returned back along with a memorandum dated 27.07.2004 with the remark No such A/c with us . That a demand notice dated 09.08.2004 and the same was sent under registered post with A/D on 10.08.2004. That the accused received the said demand notice and despite receipt of the demand notice did not repay the amount, and hence, this case was filed. Cognizance was taken, process was issued. The accused was examined under Section 251 of the Code of Criminal Procedure. He pleaded not guilty and claimed for trial. Defence case The case of the defence is that a false case has been filed by the complainant only to harass him. It is categorically stated by the accused before the Trial Court that his business was closed in the year 1990 and the bank account connected to the said business was closed much earlier (1990). The disputed cheque in this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d/respondent that when he started his business with the complainant s company, Asansol Branch, the disputed cheque of this case was taken as security from him before 1990 and was in their custody. The complainant has now misused the said cheque. The business relation with the complainant s company and the accused was from 1984 to 1990 and transaction was usually by cheque and cash. It is further stated that he did not issue the disputed cheque in the year 2004 and has denied the complainant s case. On cross-examination, the complainant has admitted that they had a branch in Asansol. He could not say that the said branch was closed. The complainant also has a branch at New Alipore, Calcutta. He could not say when the business of the accused was closed and also cannot say when the last order was placed by the accused persons at their Alipore Branch. This witness has proved the signature of the accused marked as Exhibit 1 . He has denied the case of the accused that the shop closed down in the year 1990-91 and that they prepared the cheque subsequently. From the materials on record, it is seen that the notice under Section 138 of Negotiable Instrument Act is in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 and this Court finds after considering the said circumstances and materials on record and the documents in support of the contention of the accused that his business did close down in the year 1990. The learned Magistrate was right in his finding that it is not believable that the disputed cheque was issued after almost 15 years of closure of the account. The complainant could not produce any documents to show any transaction between the parties from 1990 onwards. There are no documents either invoice or receipts of the business transaction from the year 1990 till 2004. Such contention of the complainant cannot be believed. It is seen that the case of the accused respondent is prima facie believable as he has filed all the documents relating to his business and also bank account, which supports his statement that his business and the bank account were closed in the year 1990. It is the case of the appellant complainant that as all the ingredients required to prove a case under Section 138 of the Negotiable Instrument Act have been duly proved regarding dishonour of the cheque, the accused should have been convicted. The contention of the accused respondent is that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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