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TMI Blog2015 (11) TMI 1873X X X X Extracts X X X X X X X X Extracts X X X X ..... ase is that, accused borrowed a sum of Rs. 1,17,500/- from the complainant and in discharge of that debt, he issued Ext. P1 cheque. When the cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the due amount by giving a notice in writing, but after notice, there was no repayment of the due amount, hence he filed a complaint before Judicial First Class Magistrate, Kozhikode. During trial, complainant was examined as PW1 and his documents were marked as Exts. P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Section 313 Cr.P.C. Accused did not adduce any defence evidence. The learned Magistrate convicted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque or it exceeds the amount arranged to be paid from that account by an agreement made with a bank, such person shall be deemed to have committed an offence under Section 138 of the N.I. Act. This deemed provision is subject to the statutory condition that the cheque has to be presented within the statutory period in which it is drawn or within the period of its validity. Secondly, the payee or holder in due course of the cheque makes a demand for payment of such amount by giving a notice in writing to the drawer of the cheque within 30 days (with effect from 06/02/2003) on receipt of information from the bank. If the drawer fails to make payment of due amount within 15 days on receipt of notice, the payee or the holder of the cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be considered strictly and in case of doubt, the benefit will go to the accused. The presumption of law is that a person is innocent until proved guilty. This means that there is always a presumption of innocence in favour of an accused and the burden to prove the case is on the prosecution. That presumption is available to an accused who is prosecuted under Section 138 of the Negotiable Instruments Act, simply because a cheque happened to be dishonoured itself is not a ground to say that the accused has committed an offence. There may be exceptional cases out side the purview of the Section 138. A debt is a liquidated amount of money owed and payable to another in present or in future which is a pecuniary liability recoverable by actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount due under a cheque is paid and if the payee or drawee fails to make an endorsement and the holder claims the full cheque amount whether any offence under Section 138 of the N.I. Act will be attracted in this context. Normally, admissions are not conclusive proof of the matters admitted, but they may operate as estoppel and one can prove that it was made under mistake of law or fact or under threat or inducement. In the absence of such proof of threat or inducement or mistake of law, admission made by persons constitutes good evidence against the party making it. Thus when there was no material to show that the admission made by the complainant is not in another transaction such admission is valuable in connection with the transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negotiable Instrument signs the same. If the signature on the back side of the instrument or on the face of the instrument is made by a third party, neither the maker nor the holder made any indorsement within the meaning of the Section. Section 15 of the N.I. Act reads as follows; "When the maker or holder of a negotiable instrument signs the same, otherwise than such as maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same, and is called the "indorser"." Therefore, a promissory note, bill of exchange or a cheque can be negotiated by making an indorsemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iage of justice. Therefore, this is a fit case to exercise revisional jurisdiction. While invoking revisional jurisdiction, this Court can rectify the illegalities committed by the inferior Courts. The object of conferring such power is to correct grave miscarriage of justice arising from erroneous orders. In Angu Parameswari Textiles (P) Ltd. and Others v. Sri. Rajam and Co. 2001 Company Cases Vol. (105) 186 Madras High Court held that; "For the purposes of Section 138 of the Negotiable Instruments Act, 1881, the cheque should be towards the discharge of either the whole debt or part of the debt. If the cheque is for more than the amount of the debt due, Section 138 cannot be attracted." Here the portion of the cheque was repaid and suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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