TMI Blog2002 (4) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 139 of the Negotiable Instruments Act and that the acquittal of the accused has resulted in a miscarriage of justice. Reliance was also placed on the fact that Ext. D1 which was produced by the accused to contend that the cheque was issued in connection with a totally different transaction is a forged document as found by the trial court. 4. According to the learned counsel for the respondent, the cheque in question cannot create a cause of action for the complainant in so far as it was admitted by PW1 that only a sum of Rs. 80,000/- was given to the accused on 15.1.1995 whereas the amount mentioned in Ext. P1 cheque bearing date 15.1.1997 is Rs. 1 lakh. The counsel further submits that in view of the admitted fact that the actual consideration that is alleged to have passed is only Rs. 20,000/- lesser than the amount mentioned in the cheque, the cheque is incapable of creating a cause of action under Section 138 of the Negotiable Instruments Act. As regards the finding regarding forgery in the matter of Ext. Dl, it is argued that the weakness of the defence case does not enable the complainant to have a walk over and that has to win or lose based on the strength of his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of consideration; still a cause of action would be available to the payee under Section 138 of the Negotiable Instruments Act. If that is so the question of a cheque for a larger amount than what is actually received by the accused also would make no difference provided the entire amount so mentioned is necessary to discharge the debt or legal liability. 9. On the facts of this case the difference in amount does not appear to be of significance. The reason is that the date of transaction is 15.1.1995 and the date that Ext. P1 bears is 15.1.1997. The complainant's case, spoken to by PW1 is that post dated cheque was issued to cover the liability arising from the transaction inclusive of the interest on the principal amount for two years that would transpire between the dated of transaction and the date of cheque and that the element of Rs. 20,000/-forming part of the cheque amount represents such interest on the principal amount of Rs. 80,000/- for two years. 10. Ashok Yeshwant Badeve v. Surendra Madhavrao Nighojakar and Anr. AIR 2001 SCW 1099) is authority for the proposition that such a post dated cheque is not a cheque on the date when it is drawn; that it becomes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm was created. The production of Ext. P7 passport of the son of the complainant (unfortunately he passed away in the year 1991) exposed the falsity of the case set up based on Ext. D1. A comparison of the signature of the passport holder in Ext. P7 and the signature contained in Ext. D1 reveals the fact that there is absolutely no comparison between the same. The necessary inference is that Ext. D1 is a forged document. The reliability of the denial contained in answer to the question under Section 313 of the Cr.P.C. has to be appreciated in this perspective also. 14. It is true that PW1 admitted that the money transaction between the parties took place in the presence of one Rajappan and he had not been examined as a witness in the case. But for the availability of the presumption under Section 139 of the Negotiable Instruments Act, the said fact, perhaps, might have had an impact on the culpability of the accused. According to me, the complainant is entitled to the presumption under Section 139 of the Negotiable Instruments Act and it has not been rebutted through appropriate rebuttal evidence. 15. Section 139 reads as follows:- Presumption in favour of holder:- It s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to me, the said presumption which is validly available to the complainant remains undischarged through appropriate rebuttal evidence of acceptable nature. 18. Point No. 3:- In order to establish the offence under Section 138 of the Negotiable Instruments Act, the complainant has not only to prove that the dishonoured cheque was issued in discharge of legal liability but also that the drawer failed to pay the amount in spite of notice intimating the fact of dishonour. The issuance of notice intimating such dishonour and the fact that there was failure to pay the amount demanded within the time allowed by law stand proved in the present case. Apart from Ext. P6 reply to such notice there was no attempt on the part of the accused to pay the amount demanded. 19. There is one more aspect to be considered. The reason for dishonour mentioned in Ext. P2 slip is account closed and not 'funds insufficient'. But then, it can be seen from the evidence of PW2, who was the Branch Manager of the Federal Bank, that Ext. P1 cheque was issued in a cheque leaf issued to the accused; that it had gone in for collection on 28.1.1997 and that there was no balance in the accused' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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