Ni-138- computer generated memo from bank without seal/stamp

please note that we are not arguing on the matter in the context that the present document is xerox or photocopy and its admissability. I do admit that xerox copy are not admissable in evidence.

But in the present case, It is orginal copy issued by the bank to the complainant but does not bear seal, which is just an procedural irregularity from the bank. . It is not the case of the complainant that the document is photocopy/ xerox.  Hence the same can be marked subject to rebuttal. So far as the question of S.60 is concerned, the complainant himself has obtained the Memo (document in question) from the bank and he himself has the personal knowlege of the fact of dishonour and hence the question of hear say does not arise at all.

You are confusing the issue , all documents have to come from proper custody. 

MR. AJIT ANY CRIMINAL CASE HAS TO BE PROVED BEYOND DOUBT, WHEN THE SAME PAPER CAN BE PRODUCED BY ANY PARTY IN THE CALENDER CASE SAYING THAT  THE CHQ GOT BOUNCED FOR THE PURPOSE OF HARRASMENT/BLOCKMAIL. NOT FOR ENCASHMENT-

AUTHENTICATION OF DOCS ARE MOST IMPORTANT.

THE DOCUMENT HERE IS PRIMARY EVIDENCE, EVEN THOUGH IT IS A CONCLUSIVE PROOF FOR THE CASE HOW CAN YOU TAKE IT AS GRANTED FOR EVIDENCE A PLAIN TYPED PAPER.

CHQ AND MEMO R THE PRIMARY DOCS TO PROVE THE TECHNICAL OFFENCE. THIS IS NOT A MORAL TURBTITUDE OFFENCE. 

HENCE MEMO SHALL BE SIGNED,STAMPED WITH DESIGNATION.

And I will add to Mr REDDY=

In nomral course the computerised statements comes it is OK , but when you have to file a compaint the person has to go the concerned bank and get it signed and stamped.

Those who conduct regular trials will not raise such querries which the learned freind is doing.

Since what will be sequence of trial , you filed the case and papers and than affadavit. Now you can not gp apn correcting the mistakes or go on adding on explanations.

So once the papers are filed the accused will cross and at this stage you are not allowed to give explanations.

I think it is sufficient if the bank official comes and deposes  that there was no sufficiant funds in the account of the accused and memo was issued by him.(The complainant may  direct the bank official to produce the ledger exract also) Then court cannot say that the complainant has failed to prove his case and the accused cannot be convited as there was no seal and signature in the memo.The only purpose behind the memo is to asertain whether the accused was having sufficient funds in the account at time of presentation of the cheque ( which can be proved  by ledger extract also).I don't think the court will  such a hyper technical level ignoring the intention of the legislature.

THIRU THANKACHAN AVL,

THE NI ACT U/S  138 ITSELF IS A TECHNICAL OFFENCE, IT IS NOT OF  ANY MORAL TURBITUDE/OR ELSE. THE WHOLE CASE LIES ON THE TIME OF NOTICE, REPLY, PAYMENT ETC.,

REBUTAL IN ANY THING IS DIFERENT ISSUE OF TRAIL AND OUT COME OF THE PERCEPTIONS OF MAGISTRATE.

HENCE TECHNICALITY PLAYS A MAJOR ROLE IN 138 CASES, WHAT THE RATIO OF THE ABOVE APEX COURT DERIVES OUPON.

DEAR ALL PLS NOTE ISSUING A CHQ POATED OR SECURITY ETC., CAN NOT ATTRACT 138.

AND ALSO PLS NOTE THAT ISSUING THE CHQ ALSO NOT AN OFFENCE.

THE INGREDIENTS OF 138 WAS SO DRAFTED TO PROTECT THE COMERCIAL TRANSACTIONS, NOT THE PERSONAL,ILLEGAL CHITS AND FINANCIAL TRANS.

BUT THE LOWER COURT JFM S ARE IN THE HABITUAL OF CONVICTING THE ACCUSED WITH MERE CHQ BOUNCE IF FOLLOWED THE NOTICE, FILLING IN TIME BOUND.

IF ANY ONE HAVE A REASONABLE CONTRDICTIONS IN COMERCIAL TRANSACTION CAN EASY OUT IN APPEAL IN SESSIONS OR H.C OR EVEN SC.

 

MOST OF THE KERALITS ARE USING THESE GROUNDS TO COME OUT. THEY NEVER THINK OF GOING OF COURTS IS AN OFFENCE. THEY GO AND SURRENDER AND GET BAILS AND FIGHT FOR JUSTICE.

PLEASE NOTE THAT THIS IS A TECHNICAL OFFENCE, BAILABLE,TRAILABLE IN ELOBORATE WAY, THERE ARE WELLSETTLE APEX COURT DIRECTIONS UNDER ART.142.

AT ANY STAGE IT IS COMPOUNDABLE BY COURTS I.E THE JUDGMENT DAY OF APEX COURT.

Dear Sri Janardana Reddy,

1.I too agree that it is a technical offense .

2. But we should bear in mind that computer generated copy was unknown in the year 1989.I don't it is logical to compare the computer generated memo with  other mandatory formalities like issuance notice within 30 days of the receipt of notice , 15 days time for payment and 30 days time for filing complaint . There are no alternatives for the above statutory formalities.But in the case of   memo, there  is  alternative to show that the accused was having no sufficient funds in his account at the time of ppresentation of the cheque. If the complainant is summoning the bank official with the ledger extract of the accout of the accused , I am of opinion that it will be sufficient.

3.It is to be noted that 146 presumption is not in favor of the accused ,it is in favor of the complainant.Wording is that 'presume the fact of dishonour of such cheque, unless and until such fact is disproved'. It  cannot be intrepreted in favor of the accused .

4.I agree that most of HCs and Apex court have said it is technical offense, at the very same they also said that it is  quasi civil.

 

2009 (4) KLT SN  71 (C.No. 64) Guj.

Hon'ble Mr. Justice M.D. Shah

Surendrapal Singh v. State of Gujarat

Crl. R.A. No.458 of 2007

14.7.2009

Negotiable Instruments Act 1881, S.138 - “Core-banking and on-line banking system” - Non-examination of Officer who dealt with the cheque or non-production of counter-foil of pay-in-slip showing deposit of cheque does not mean that cheque was not presented with Bank.

Held: There exists a system of 'core-banking and on-line banking system' by which it is very easy to verify on the day of presentation of cheque issued from any corner of the country as to whether there was any sufficient fund in the account of the drawer of a cheque or not. Said version is proved through the deposition of the Bank Officer wherein he has specifically stated that as per on-line banking system, the cheque in original is not required to be sent to the concerned Branch from where it was issued because of the core-banking and development of computer network system. Without sending the cheque to concerned Bank, the Branch in which the cheque is presented can also verify as to whether sufficient fund is available in the account of the drawer of the cheque or not. Non-examination of the Officer who dealt with the cheque or non-production of counter-foil of pay-in-slip showing deposit of cheque does not mean that cheque was not presented with the Bank nor does it create any doubt in the mind of the Court about the version given by the complainant.

 

2008 (1) KLT 425 (SC); 

2001 (1) KLT SN 84 (C.No.104) SC & 1999 (3) Crimes 252 Referred to

 

 

JUDGMENT

 

M.D. Shah, J. 

 

This revision is directed against the judgment and order dated 23rd July, 2007 passed by the learned Sessions Judge, Gandhinagar, in Criminal Appeal No. 20 of 2007 confirming the judgment and order of conviction and sentence dated 9th March, 2007 recorded by the learned 6th Addl. Senior Civil Judge & J.M.F.C., Gandhinagar, in Criminal Case No. 6625 of 2000 sentencing the applicant-accused to suffer one year S.I. and to pay fine of Rs. 10,000/-, in default, to suffer further S.I. for 45 days for the offence under S.138 of Negotiable Instruments Act.

2. The short facts are that the complainant, a proprietary firm, doing business in the name and style of Harjas Coatings and Pol had supplied goods to the accused. The complainant received only a part of the amount and for the remaining amount, he received ICICI Bank cheque of Kanpur Branch, Kanpur (U.P.) dated 25.3.2005 drawn in his name for Rs. 10,00,000/- from the accused. On presentation of the said cheque with ICICI Bank, Gandhinagar Branch, on 9.9.2005, it was returned with an endorsement “funds insufficient”. Hence, a statutory notice was issued to the accused on 10.9.2005 which was duly served upon him. Since, he did not pay the due amount, a complaint was filed by the complainant before the learned Chief Judicial Magistrate, Gandhinagar, for the offence punishable under S.138 of the Negotiable  Instruments Act, 1981. The said complaint was registered as Criminal Case No. 6625 of 2000. The learned Magistrate on recording the verification of the complainant proceeded with the trial. On completion of evidence of complainant, further statement of the accused under S.313 of the Code of Criminal Procedure was recorded. Thereafter, the learned 6th Addl. Senior Civil Judge & J.M.F.C., Gandhinagar, vide order dated 9th March, 2007 convicted the applicant-accused as aforesaid.

 

3. Heard Mr. Bharat Jani, learned Advocate for the applicant-accused, learned A.P.P., Mr. Kartik V. Pandya for the respondent No. 1 and learned Advocate, Mr. C. B. Dastoor for the respondent No. 2-original complainant.

 

4. It is submitted by learned Advocate, Mr. Bharat Jani, for the applicant that the impugned judgment and order passed by the Court below is against the law and evidence on record. It is further submitted that the Trial Court has not considered the fact that proper procedures prescribed under Banking rules have not been followed by the complainant. There was no stamp of the Bank either in front side of the cheque Ext. 32 or on the back of it. Apart from that, the complainant has also not followed provisions of S. 146 of the Negotiable Instruments Act. According to him, the cheque in question was not at all deposited by the complainant as counter-foil of the pay-in-slip showing deposit of amount with the Bank has not been produced on record and simply the acknowledgment slip of Postal Department is produced. Apart from that, the concerned Bank Officer who dealt with the cheque has not been examined by the complainant to verify the genuineness of fact and an officer non-conversant with the case has been examined. The Trial Court has also not considered the documents at Exts. 41 to 48. Moreover, there was an apparent breach of S.72 of the Negotiable Instruments Act as the cheque was never forwarded to Kanpur Branch after it was presented with Gandhinagar Branch. The Trial Court has also not considered the fact that complaint was lodged for theft of cheques before the police which has come on record. However, the Trial Court simply by recording the verification of the complainant and plea of the accused has passed the impugned order convicting the applicant-accused. Since, the said judgment and order is illegal and untenable, the applicant-accused is entitled to be acquitted. He has relied upon the following reported decisions :

 

(1) 1999 (3) Crimes 252 in the case of Arunbhai Nilkanthrai Nanavati v. Jayaben Prahladbhai Through Her Power of Attorney & Anr.

 

(2) 2001 (1) KLT SN 84 (C.No.104) SC = 2001 (1) Crimes 284 (SC) in the case of Shri Ishar Alloy Steels Ltd. v. Jayaswals NECO Ltd. 

 

(3) 2008 (1) KLT 425 (SC) = AIR 2008 SC 1325 in the case of Krishna Janardhanan Bhat v. Dattatraya G. Hegde. 

 

5. Mr. Dastoor, learned Advocate for the respondent No. 2, has drawn attention of this Court that out of three missing cheques, one was presented to the Bank and it was encashed and it was duly credited to the account of the complainant and debited from the account of the accused. However, other cheques were returned dishonoured as there were no sufficient funds in the account of the accused. Thus, the story put forward by the accused of missing of cheques is false. Apart from that, the complaint for alleged theft of cheques was lodged after 10 months from the date of missing of cheques.

 

6. Mr. Kartik V. Pandya, learned A.P.P., has adopted the submissions made I by the learned Advocate for the respondent No. 2.

 

7. There cannot be any dispute regarding the law laid down by the Apex Court in the afore referred judgments relied on by the learned Advocate for the applicant. Relying on the law laid down in those reported decisions, I proceed further. 

 

8. This Court has considered the oral as well as documentary evidence shown by the learned Advocates appearing for the respective parties. It appears from the deposition of witness Mr. Gaurangbhai Jivanbhai, an Officer of the ICICI Bank at Gandhinagar, that when cheque in question dated 25.3.2005 of ICICI Bank, Kanpur Branch was presented before the ICICI Bank at Gandhinagar, it was returned back by the Bank with an endorsement 'insufficient funds'. He has also deposed that there is an on-line system in the Bank whereby the Branch where the cheque has been deposited, Gandhinagar Branch in this case, need not contact the issuing Branch of the cheque, here in this case, Kanpur Branch.

 

9. It appears from the above deposition that there exists a system of 'core-banking and on-line banking system' by which it is very easy to verify on the day of presentation of cheque issued from any corner of the country as to whether there was any sufficient fund in the account of the drawer of a cheque or not. Said version is proved through the deposition of the Bank Officer wherein he has specifically stated that as per on-line banking system, the cheque in original is not required to be sent to the concerned Branch from where it was issued because of the core-banking and development of computer network system. Without sending the cheque to concerned Bank, the Branch in which the cheque is presented can also verify as to whether sufficient fund is available in the account of the drawer of the cheque or not. In the present case, the cheque was issued from the ICICI Bank, Kanpur Branch, and presented in the ICICI Bank, Gandhinagar Branch, and because of core banking system, Gandhinagar Branch on verifying the record wrote the endorsement of 'insufficient fund'. In view of the above, non-examination of the Officer who dealt with the cheque or non-production of counter-foil of pay-in-slip showing deposit of cheque does not mean that cheque was not presented with the Bank nor does it create any doubt in the mind of the Court about the version given by the complainant. The applicant therefore would not be entitled to any benefit out of the afore referred judgments relied on by the learned Advocate for the applicant.

 

10. What is raised before this Court has been raised before the Court below and same were dealt by it after elaborate discussion and based on the settled legal position came to the conclusion and convicted the applicant-accused which, in the opinion of this Court, is just, proper and legal. Hence, this revision application deserves to be dismissed.

 

11. This Revision Application is dismissed. Rule is discharged. Interim relief stands vacated forthwith.

 

FURTHER ORDER

 

After the afore referred order was signed, learned Advocate for the applicant, Mr. Bharat Jani, has submitted that interim relief operating in favour of the applicant till date be continued for a further period of six weeks. Considering the facts and circumstances of the case and the fact that appeal is dismissed, request is rejected.

 

 

 

 

 

2002 (2) KLT  771

Hon'ble Mr. Justice M.R. Hariharan Nair

Soman v. Thomas Paul

Crl. R.P. No.913 of 2001   

Decided on 30th May, 2002.

Negotiable Instruments Act 1881, S.138 - Memo of dishonour - No inflexible rule that the complainant should produce the memo of dishonour from the Bank certifying that the reason for dishonour is want of funds - Conveyance from the Bank categorically stating that the cheque was returned unpaid for the reason of insufficiency of funds is enough.What is done through Ext. P2 is the conveyance of the information received from the accused's bank.  It is categorically stated in Ext. P2 that the cheque was returned unpaid for the reason of 'insufficiency of funds'.  According to me, in the absence of any counter evidence, nothing more is required to convince the court that the dishonour of the cheque took place for want of funds.  It is more so in view of the two circumstances mentioned in the two earlier paragraphs.  Of course, in order to succeed in a case of this nature the complainant has to convince the court without room for doubt, that the dishonour of the cheque was for insufficiency of funds.  The evidence required therefore may take many forms.  It is not an inflexible rule that in an action under S. 136 of the Act, the complainant should invariably produce the memo of dishonour issued by the Bank in which the accused has his account certifying that the reason for dishonour is want of funds. (para. 5)

 

K.D. Paul Dalin & P.A. Augustine   For Petitioner

 

K.V. Sabu & M. Aloscious Thomas (Public Prosecutor)       For Respondents

 

 

ORDER

 

M.R. Hariharan Nair, J.

 

The challenge in the revision is with regard to the concurrent findings of the Additional Chief Judicial Magistrate (Economic Offence), Ernakulam and the Sessions Judge, Ernakulam with regard to the conviction entered against the petitioner in C.C. No. 89 of 1997 of the former court for the offence under S. 138 of the Negotiable Instruments Act (for short 'the Act') and the modified sentence imposed by the Sessions Judge, Ernakulam, viz., imprisonment till rising of court and fine of Rs. 32,000/- (in default Simple Imprisonment for two months).  The direction that Rs. 29,000/- out of the fine amount should go to the complainant is also challenged.

 

2.  Learned counsel for the petitioner submitted that the conviction is unsustainable for the reason that the complainant failed to produce before the Court the memo of dishonour issued by the drawee bank or any other clinching evidence to show that Ext. P1 cheque was actually dishonoured for want of funds.  Ext. P2 produced in the case is only an intimation from the complainant's bank and that cannot be relied upon to show that the cheque bounced for want of funds.

 

3 I find absolutely no merit in the petitioner's contentions.  This is a case where Ext.  P3 notice sent by the complainant alleging return of the cheque for want of funds was received by the petitioner as per Ext. P4.  There was no reply from the petitioner stating either that the cheque was not dishonoured or that the dishonour was for some reason other than insufficiency of funds.

 

4.  I have carefully perused the evidence of PW.1.  In the chief examination he has asserted that the reason for the return of the cheque was insufficiency of funds.  There was absolutely no question put to PW. 1 even by way of a suggestion that the dishonour of the cheque took place for some reason other than want of funds.

5.  It is in this background that Ext. P2 has to be perused.  It is a letter sent to the complainant from the complainant's bank through which Ext. P1 cheque had been presented for payment.  What is done through Ext. P2 is the conveyance of the information received from the accused's bank.  It is categorically stated in Ext. P2 that the cheque was returned unpaid for the reason of 'insufficiency of funds'.  According to me, in the absence of any counter evidence, nothing more is required to convince the court that the dishonour of the cheque took place for want of funds.  It is more so in view of the two circumstances mentioned in the two earlier paragraphs.  Of course, in order to succeed in a case of this nature the complainant has to convince the court, without room for doubt, that the dishonour of the cheque was for insufficiency of funds.  The evidence required therefore may take many forms.  It is not an inflexible rule that in an action under S. 136 of the Act, the complainant should invariably produce the memo of dishonour issued by the Bank in which the accused has his account certifying that the reason for dishonour is want of funds.

6.  There is adequate evidence available in the case.  The contention of the petitioner is without any merit or bona fides and the same is rejected.

Crl. R.P. is accordingly dismissed.

You are giving all these solutions on counter querries which does not happen in practice.

I have not a single case where bank person has come with ledger since it is many years old. More ever it will take your life time to achieve  this objective of enforcing the presense of bank person with ledger even after court notice.

Mr TENCHCHAN just because you have produced some old citaions without reading them fully or judgments given thereafter by higher courts.

REAGRDING PRESUMTION THERE ARE NUMBER OF RECENT CITATIONS WHICH SAYS  THAT IN CRIMINAL TRIALS PRESUMTION WILL BE ONLY WHEN LIABILITY IS PROVED WITHOUT DOUBT AND BURDEN IS ON COMPLAINANT.

I THINK MR REDDY ABOVE HAS POSTED A RECENT BOMBAY HC CITATION IN FILES SECTION  WHICH HAS CLEARLY ELOBARATED THE CONCEPT OF PRESUMTION SETTING ASIDE CONVICTION BY LOWER COURT.

According to me, in the absence of any counter evidence, nothing more is required to convince the court that the dishonour of the cheque took place for want of funds

Please read the above sentence in the citation so if propertly cross examined by the accused the situation would not have arisen.

More ever nothing in the judgment above mentioned it has come that the memo of the bank is not stamped and the whole issue here is unstamped bank memo.

The judgment does not say that unstamped memo is legal and admissible in evidence so presumtion can be drawn.

Now in the instant case if the advocate of accused in not delligent than this fact can go unoticed.

Mr Reddy please also deal with the  PRESUMPTION therory u/s 139 which every body thinks it is absolute , but it is not.

1. I was trying to asnwer only one point" whether computer generated memo is admissible in 138 offense".I am of opinion that it is admissible in evidense subject to proof and complaint will not go on that ground. Unlike IPC offences presumption not in favor of accused in 138 offences. So the accused cannot be tight lipped in all 138 cases and he has to break silense to prove his innocense.

2. If my citations are primitive you can enlighten by me by bringing latest citations  without simply saying THERE ARE  NUMBER RECENT CITATIONS and whatever I said is from my little experience for 26 years in lower judiciary. 

THIRU THANKACHAN AVL, YOUR VIEWS ARE VERY VALUABLE & GIVES US TO GO BACK AND THINK FROM OUR REBUTTAL AND PRESUMPTION THEORY OF U/S 139. NO DOUBT THERE ARE NO.OF CITATIONS WHERE I POSTED IN FILES COLUMN REGARDING 139. ANY HOW THIS ELABORATE DISCUSSION IS TO GET NEW IDEAS AND CITATIONS. THANKS FOR VALUABLE CONTRIBUTION .