M K PHILIP Vs. GAINMORE INVESTMENT

JUDGEMENT

(1.) The complainant is in appeal, on dismissal of his complaint alleging offence under Section 138 of the Negotiable Instruments Act filed against the respondent/accused.

(2.) The admitted case by both the parties is as follows: On 25.8.1993, the appellant entrusted 1000 SBI Magnum Shares to the respondent/accused, a share broker for being sold through bi-weekly settlement in the Cochin Stock Exchange, where the respondent conducts his trade. Admittedly, the value of 1000 Magnum shares at that time was Rs. 49,500/-. The accused drew Ext.P2 cheque for the said amount and handed it over to the complainant. It is not forthcoming in evidence, on which date it was handed over. Admittedly by the accused, the cheque so handed over was a post dated cheque. It bears the date 10.12.1993. Therefore, it could have been handed over earlier than 10.12.1993 towards a legally recoverable debt on account of the consideration of 1000 SBI Magnum Shares entrusted by the complainant to the accused on 28.8.1993. In the meantime, bi-weekly settlement was banned by the Security Exchange Board of India as per circular dated 30.11.1993. The appellant presented Ext.P2 cheque to the bankers. It bounced for want of sufficient fund in the account of the accused. This resulted in a lawyer notice, Ext.P4 which was duly registered as per Ext.P6 and acknowledged as per Ext.P6. Ext.P7 ledger of the bank shows that there was no sufficient fund when the cheque was presented. Nor did he meet the demand for payment of the amount covered by Ext.P2 cheque. This resulted in the complaint.

(3.) The complainant could prove that the accused had drawn Ext.P2 cheque against an account maintained by him and that it could not be encashed in spite of presentation, as is revealed by Ext.P3 cheque return memo and Ext.P7 ledger extract for want of sufficient amount in the account of the accused. There was due demand in terms of Clause (b) of the proviso to Section 138 of the Act for payment of the amount covered by Ext.P2 cheque as is revealed by Ext.P4, copy of the lawyer notice, Ext.P5 registration slip and Ext.P6 postal acknowledgment from the accused. There was no reply. Issuance of Ext. P2 cheque is admitted by the accused. There is no defect in the notice. It is within time. The complaint was also filed within time. Therefore, it is clear that Ext.P2 cheque admittedly issued by the accused bounced for want of sufficient fund in his account and an offence under Section 138 of the Act is made out.