T N UNNIKRISHNAN Vs. T K RAMANKUTTY

JUDGEMENT

(1.) The complaint filed by the appellant, alleging offence punishable under Section 138 of the N.I. Act against the first respondent did not succeed. Therefore, this appeal. Taking into account the fact that the appellant had presented the cheque in question thrice, on 1-1-1998, 2-1-1998 and 7-3-1998 and that he had issued two notices, the first on 13-1-99 after the 2nd presentation which returned unserved as no such addressee and a second one on 13-3-1998, after the third presentation which really reached the addressee, the respondent, the Court below found that the complaint was filed beyond 30 days of the date when the cause of action arose, with reference to the first among these two notices. The Court below also found that there was difference in ink and handwriting with regard to the filling of the cheque as well as signature there on.

(2.) As regards the second ground now it is now trite that when the cheque is admittedly signed by the drawer irrespective of the fact that, that had been filled up by any other person putting the date and amount, the drawer cannot get absolved of the liability under Section 138 because he has to rebut the statutory presumption against him by adducing further evidence that it was not one given in discharge of the liability that he owed to the payee either in whole or in part. Such an evidence is absent in this case. Therefore, the second ground on which the acquittal was recorded by the Court below is not sustainable.

(3.) Whether the complaint was filed beyond the period of limitation with reference to the service of notice is the moot question that has to be considered.