Document Fragment View

Matching Fragments

28. In the present case, the case of the complainant is that the said cheque issued by the accused in discharge of legally enforceable debt has been dishonoured for the reason payment stopped by the drawer. With respect to the same, the complainant has also issued the notice dated 07.11.2018 stating that the said cheques has been dishonored through banker memo dated 30-10-2018 with an endorsement payment stopped by drawer. The said notice has been issued by the complainant dated 07.11.2018 which is marked as Ex.P.5 in C.C.No.60105/2018. On perusal of the records in the present case, the case of the complainant is that the accused had issued the cheques for legally enforceable debt and the same came to be dishonored and the complainant has issued the legal notice calling upon the accused to make payment due under the said cheques. The complainant has contended that the reason for dishonor of the cheques is payment stopped by drawer. Whereas, with respect to the same, the complainant has issued Ex.P.5- Notice. The accused having issued the reply to the said notice as per Ex.P.9 has taken the contention that the accused has not issued any cheques to the complainant and never had any transaction with the complainant through cheques and all the payments are made through online with respect to the transactions between the complainant and accused. The accused has also taken the contention in the reply notice that the complainant requested to give sample cheques for auditing purpose, whereas in the said notice, the accused has taken the contention that there is no debt or any legal liability to be discharged, whereas the complainant has forged and fabricated the cheques for the purpose of cheating the accused. The accused has also taken the contention that the complainant has made illegal effort to fabricate the cheques drawn on Yes bank which has been returned as signature does not tally. Whereas, the accused has taken the contention and sent the reply notice that the said cheques has been dishonored for the reason signature does not tally, whereas, in the present case, the cheques presented by the complainant has been dishonored for the reason payment stopped by drawer. With respect to the said contention, the accused has not produced any document before the trial Court to show that why she has issued the 'stop payment' with respect to the said cheques. whereas the cheques having been dishonored for the reason payment stopped by the drawer, the burden is cast on the accused to prove that there was sufficient balance in the account to honour the cheques and for the reasons mentioned in the stop payment instructions same has not been honoured, the accused has instructed the bank to stop the payment of the cheques. Whereas, in the present case, the accused has not produced any documents to substantiate that why she has issued the stop payment instruction with respect to the cheques which were presented by the complainant though the cheques has been dishonored for the reason payment stopped by drawer. The contention of the accused is that the said cheques has been dishonoured for the reason signature does not tally. With respect to the said contention, there is no document before this Court to presume that the signature does not tally and for the said reason the cheque has been dishonoured. Whereas, the Ex.P.1 is the disputed cheque and Ex.P.2 is the dishonored memo with respect to present cheque. Whereas, the same has been dishonored for the reason payment stopped by drawer. The cheque has been dishonoured for the reason payment stopped by drawer. The said cheque having been dishonoured for the said reason, the burden is cast on the accused to prove that the cheque was not issued for legally enforceable debt or for what reason the stop payment instruction was issued. The accused- DW1 has admitted in the cross-examination that the said stop payment instruction has been given to the bank by her husband D.W.2. Whereas, she has also taken the contention that the said cheque signatures does not belong to her and also she has further led the evidence stating that her husband has not taken the signature on the cheques to issue to the complainant. With respect to the same, the complainant has cross-examined the DW1 as to for what reason the stop payment instruction was issued, for that, the DW1 has answered that her husband has given the stop payment instruction and for what reason, she does not know and further she has admitted that she has signed the letter for giving stop payment and the said letter has been handed over to the bank by her husband and also she has further admitted that the stop payment letter has been drafted by her husband. The DW1 has admitted in the cross-examination that she does not know about the transaction with the complainant. The accused DW1 having admitted in the cross-examination that she does not know why the stop payment instruction was issued to the bank substantiates that she was not aware of the transaction and also further admitted that her husband has drafted the stop payment letter. With respect to the same, the bank manager has been examined and he has stated that the stop payment instruction was issued through online. If the stop payment instruction was issued through online, the question of the bank manager comparing the signatures of the cheques does not arise. Whereas, as per the instructions, the payment was stopped by the drawer, as such, the question of the bank manager verifying the signatures on the cheques and issuing the endorsement that the signature are not tallying does not arise as in the present case, the cheques has been dishonored for the reason payment stopped by the drawer, the question of examining the expert witness with respect to the forgery of the signature and other aspect that the complainant has forged and fabricated the signature of the accused does not arise, and hence, the burden is passed on the accused to substantiate that as to for what reason the stop payment was issued to the banker.