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Crl.Appeal No.107/2024

18. Admittedly, as per bank endorsement which is marked at Ex.P.2 the cheque in question is returned for "Other reasons/FATCA CRS Pending" and this reason i.e. other reason/"FATCA CRS Pending is a technical defect where bank blocks the account and this will not come in the purview of Section 138 of N.I. Act as to say funds insufficient, payment stopped by the drawer, account closed etc., Even it is not the case of complainant/respondent that, the cheque in dispute is a CTS cheque and not an inactive cheque as contended by the accused. The fact that RBI has issued guidelines not to accept the non CTS cheque from 01/01/2019 is not in dispute.

19. In this case admittedly alleged transaction of supply of Sarees and dress materials on credit basis was from 22/09/2017 onwards till 10/04/2019 and it is the case of complainant that, accused has issued the Crl.Appeal No.107/2024 disputed cheque in his favour on 06/10/2019 and it is thereafter on 06/10/2019 said cheque was presented before Bank of India and the same was returned for reasons as mentioned above on 10/10/2019. This clearly establishes the fact that the complainant herein presented the invalid cheque before the bank. The cheque in dispute which is marked at Ex.P.1 is dated 06/10/2019, whereas the guidelines issued by RBI clearly discloses about directions to all the banks not to accept any non CTS cheque from 01/01/2019 and this fact is also not disputed by the complainant/respondent. Even the complainant no where states whether he has made any attempt to approach the accused with regard to issuance of Non CTS cheque in his favour on 06/10/2019 and requested to issue another proper CTS cheque. There is no discussion on this point in the judgment of trial court rather it concentrated more on the Crl.Appeal No.107/2024 evidence and available documents furnished by the complainant.

20. Even the reply notice of the accused which is marked at Ex.P.6 speaks about non CTS cheque by contending that, he issued the said cheque to the transaction made by his father as a security as his father was not having amount for excess purchase of dress materials. According to the accused he issued the said cheque as security in the year 2014 and the same was misused by the complainant in the year 2019 and by that time the CTS i.e. Cheque Truncation System i.e. the electronic clearing method where scanned images replaced the physical cheques, further, these non CTS cheques where people used to present physically were banned by RBI by introducing these Cheques Truncated System as such, upon presentation of the cheque in dispute which is admittedly a non CTS cheque on Crl.Appeal No.107/2024 06/10/2019 became invalid, as such the bank has issued an endorsement stating "FATCA CRS Pending". Under these circumstances, the defense of accused which was raised by him in his reply notice as well as in the cross- examination of P.W.1 and also in his defence evidence that he had issued the said cheque towards business transaction of his father some where in the year 2013-14 as security and same was misused by the complainant appears to be genuine in view of rejection of said disputed cheque for the reason of non CTS cheque and corroborates the defense version of the accused, the trial court has not attempted to look into this angle.

21. Further as contended by learned counsel for accused the reasons for non acceptance of the cheque by the bank no where attracts the ingredients of insufficient funds as mandated under the provisions of Section 138 of N.I. Act. Thus the reasons assigned is a Crl.Appeal No.107/2024 technical defect unrelated to insufficient funds which is excluded in the provisions of Section 138 of N.I. Act. Therefore, the fact that the disputed cheque is rejected for the reason of invalid cheque i.e. non CTS cheque itself is sufficient to hold that it will not come under the purview of Section 138 of N.I. Act. Therefore, accused before the trial court has rebutted the presumption of Section 139 of N.I. Act available in favour of complainant, as such preponderance of probability lies in favour of accused. Under such circumstances, any number of evidence other than the point of non CTS cheque is of no use.