TMI Blog2023 (3) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque was lost from his custody. Therefore, it is very clear that though the account was closed in the year 2001 as per D.W.1 and D.W.2, but, it was within the exclusive knowledge of the accused as to why he issued Ex.P.1 in the year 2004 in favour of the complainant. The defence of the accused that he used to sign the cheques beforehand and he used to return unused leaves, etc., is not at all probabalized by virtue of the evidence of D.W.2 coupled with Ex.D.1 to Ex.D.4. No man of reasonable prudent would venture to sign beforehand especially when he was a habit of returning the unused cheques to the bank. The complainant was able to prove before the Court below that the accused issued Ex.P.1 cheque in favour of the complainant towards part discharge of legally enforceable debt. The date of return was on 28.10.2004. Ex.P.6 reveals that the complainant also sent a legal notice under certificate of posting. The complainant could not be found fault for the absence of the accused in the headquarters when the postal authorities tried to serve the notice. Therefore, if the registered notice was sent to the correct address of the accused with proper postage and when the accused wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is business, agreeing to repay the same with interest at 18% per annum payable on demand to the complainant or on his order. On the even day, he executed a demand promissory note in favour of the complainant. On repeated demands made by the complainant, the accused issued a postdated cheque, dated 27.06.2004 for an amount of Rs. 1,50,000/-towards part payment of debt due under the promissory note vide cheque bearing No. 923919 drawn in the name of State of Bank of India, Avanigadda in favour of the complainant. The complainant presented the said cheque for collection in Indian Bank, Avanigadda in September, 2004. The Indian Bank, Avanigadda forwarded the cheque for collection to State Bank of India, Avanigadda. The State Bank of India, Avanigadda returned the cheque along with a cheque returned memo with date of 01.10.2004, with a reason that the accused account was closed. It was intimated to the complainant by Indian Bank along with memo, dated 05.10.2004 with a returned memo of State Bank of India along with the cheque. The closure of the account of the accused would amounts to dishonour of cheque. The complainant had properties and capacity to lend the amount under the promisso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which came to be dismissed on merits. Aggrieved by the said judgment in Criminal Appeal No. 66 of 2006, the unsuccessful appellant filed the present Criminal Revision Case. 7. Now, in deciding this Criminal Revision case, the point that arises for consideration is that as to whether the judgment, dated 20.08.2007 in Criminal Appeal No. 66 of 2006, on the file of learned X Additional District Sessions Judge, Krishna at Machilipatnam, suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the said judgment of the learned Additional Sessions Judge? POINT:- 8. Smt. Y. Anupama Devi, learned counsel for the revision petitioner, would contend that the complainant before the Court below failed to prove that Ex.P.1, cheque, was issued by the accused in favour of the complainant for discharge of the legally enforceable debt. The accused put forth a defence before the Court below that the complainant stolen Ex.P.1 from the custody of the appellant. Except the signature and account number in Ex.P.1, the rest of the contents of Ex.P.1 were not in the hand writing of the accused. The complainant failed to send statutory noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount number. He is in the habit of keeping signed blank cheques for issuing the same to his business customers whenever he wanted to issue cheque to the concerned. He will note his name and issue the same by affixing his firm stamp i.e., Tajeswani Enterprises. He does not know how the complainant came into possession of Ex.P.1. He did not receive any notice under certificate of posting. He did not receive registered notice from the complainant. He had no account in his individual name in State Bank of India, Avanigadda. The Firm Tajeswani Enterprises account was closed in the month of November, 2001. The complainant filed this complaint at the instigation of one Simhadri Rai, who is his cousin. 14. Turning to the evidence of D.W.2, the Branch Manager, State Bank of India, Avanigadda, he deposed that he brought the ledger relating to Current Account No. C/A C I 243 of Tajeswani Enterprises, Avaniagadda. It was opened on 09.03.2001. On that day, they provided cheque book facility to the Proprietor of Tajeswani Enterprises, Simhadri Srinivasa Rao through a letter. On 15.11.2001 it was closed by the customer at request of Proprietor of Tajeswani Enterprises through a letter. Ex.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered post. He denied that he got filled up Ex.P.1 through his friend and handed over to the complainant towards part satisfaction of Ex.P.7. He denied that he issued Ex.P.1 suppressing that he closed his account. It is true that he did not give any report either to the police or to the bank about the loss of Ex.P.1. He denied that he is deposing false to escape from his liability. Turning to the evidence of D.W.2, the bank official, he deposed in cross examination that Ex.P.1 cheque is one of the leaves relating to the cheque book issued to the Proprietor of Tajeswani Enterprises on 09.03.2001. Ex.D.3, letter, did not disclose that the Proprietor of Tajeswani Enterprises lost any leaf from the cheque book. Even Ex.D.3 did not disclose the return of unused cheques to their branch. As per Ex.P.2, the cheque was dishonoured due to account closed. 17. Admittedly, both the Courts below found favour with the case of the complainant upholding the contention of the complainant under Section 138 of N.I. Act. It is no doubt true that the complainant was supposed to prove before the Court below that the accused issued Ex.P.1 towards part discharge of legally enforceable debt and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount was closed in the year 2001 as per D.W.1 and D.W.2, but, it was within the exclusive knowledge of the accused as to why he issued Ex.P.1 in the year 2004 in favour of the complainant. The defence of the accused that he used to sign the cheques beforehand and he used to return unused leaves, etc., is not at all probabalized by virtue of the evidence of D.W.2 coupled with Ex.D.1 to Ex.D.4. No man of reasonable prudent would venture to sign beforehand especially when he was a habit of returning the unused cheques to the bank. The accused would not have kept quiet, if really the complainant and Simhadri Ravi stolen away the cheque from his custody. So, the defence of the accused is not at all convincing, in my considered view. Apart from this, the complainant discharged his burden by getting marked Ex.P.7, promissory note and by getting examined P.W.2. P.W.2 has no reason to depose false against the accused. Hence, the complainant was able to prove before the Court below that the accused issued Ex.P.1 cheque in favour of the complainant towards part discharge of legally enforceable debt. 19. Coming to the statutory requirements to attract the offence under Section 138 of N.I. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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