IMPORTANT POINT
Dishonour of cheque – Cheque return memo is not document which is required to be covered under Bankers Book Evidence Act, 1891 – If there is any infirmity in cheques return memo, it does not render entire trial under Section 138 of N.I. Act, 1881 as nullity.

JUDGMENT (CAV)

Since common question of law and facts involved in both the cases are one and the same, therefore, they are heard analogously and are being disposed of by this common order.

2. The brief facts of the case are as under:-

a. The details of the case number of the trial Court, cheque number, amount, date of dishonor, date of returning memo, and date of issuance of notice to the accused by the complainant are given in the tabular form as under:-

b. As per details mentioned above the complainant has filed complaint under Section 138 of Negotiable Instruments Act, 1881 (in short “N.I. Act, 1881”) mainly contending that the complainant is doing the business of cement, bricks and supply of construction materials. Due to relationship with the complainant, the accused has taken material for the amount of Rs. 67,470/- and 1,70,600/- and to discharge the said liability he has given the said cheques which have been dishonored due to insufficient fund as per the description mentioned in the above table. The complainant has sent a legal notice to the accused and despite the service of notice neither the amount was paid nor any reply was given, which has necessitated the complainant to file a complaint.

c. The complainant to substantiate his case has examined himself by way of an affidavit as provided under Section 145 of N.I. Act, 1881 and exhibited documents mainly the dishonored cheque (Exhibit P/1), returning Memo (Exhibit P/2), Registered Notice (Exhibit P/3), Postal Receipt (Exhibit P/4), and Bill (Exhibit P/5) in both the cases. The accused has not examined any witness, but in his evidence under Section 313 of Cr.P.C. the accused has taken plea of false implication and has stated that he has given the cheques towards security advance for supply of the material, but the complainant has not supplied the material and has misused the same. The learned trial Court vide impugned order has dismissed the complaint. The learned trial Court while dismissing the complaint has recorded its finding that neither in the forwarding memo there was seal of the bank, signature of the bank officer nor any bank officer has been examined which is violation of Section 146 of the N.I. Act, 1881 and accordingly, it has dismissed the case. The learned trial Court while dismissing the complaint has recorded its finding that the amount mentioned in the dishonored cheques has not been paid by the accused within the time prescribed under Section 138 of the N.I. Act, 1881 and has held the cheques were given towards debt or liability, but dismissed the complaint and acquitted the accused. Being aggrieved with the order passed by the learned trial Court the acquittal appeals have been preferred by the appellant.

3.Learned counsel for the appellant would submit that the learned trial Court though it has held that the complainant has not paid the amount of the cheques and the said cheques were given towards consideration of cement and iron rod from the complainant, thus, it has recorded its finding that the cheques were given towards debt and liability, but has committed illegality in dismissing the complaint on the count that return memo does not bear the signature of the bank stamp, therefore, the finding recorded by the learned trial Court that it cannot be a banking record as per Section 146 of the N.I. Act, 1881 is also illegal, erroneous and would pray for allowing the appeal.

4. Per contra learned counsel for the respondent wo