IMPORTANT POINT
Memorandum of Undertaking must be proved by documentary proof.

C.S. Karnan, J.—The revision petitioner/appellant/accused has preferred the present revision in Cr.R.C. No.833 of 2005 against the judgment passed in C.A.No.246 of 2003, on the file of learned Additional Sessions Judge, Fast Track Court-II, Chennai, confirming the conviction and sentence passed in C.C.No.968 of 2000, on the file of XIV Metropolitan Magistrate, Egmore, Chennai.

2. The respondent/complainant’s case is as follows:

The accused, in order to discharge the dues payable to the complainant, issued a cheque dated 31.8.1999, drawn on Bank of Madura, West Mambalam, Chennai, for a sum of Rs.50,000 to and in favour of the complainant. When the complainant deposited the said cheque for encashment with his bankers viz., Federal Bank, Anna Salai, Chennai Branch on 20.12.1999, it was returned unpaid with an endorsement of “insufficient funds” in the account of the accused on 21.12.1999. The complainant sent a legal notice to the accused on 23.12.1999, which was received by the accused on 27.12.1999. In spite of receipt of notice, the accused had neither replied nor paid the cheque amount. Hence, the complainant had filed a complaint against the accused for an offence under Section 138 of Negotiable Instruments Act before the XIV Metropolitan Magistrate, Egmore, Chennai.

3. On being questioned, the accused pleaded not guilty and hence trial was conducted. On the complainant’s side, two witnesses were examined and eight documents were marked as Exs.P1 to P8 viz., Ex.P1-power of attorney, Ex.P2 cheque, Ex.P3 return memo, Ex.P4 copy of lawyer’s notice, Ex.P5 and Ex.P6 acknowledgment cards, Ex.P7 power of attorney given to PW2 and Ex.P8 bank account statement of accused. On the side of the accused, the accused was examined as RW1 and three documents were marked as Exs.R1, R2 and R3, viz., Ex. R1 copy of receipt, Ex.R2 proof of giving pay order and Ex.R3 copy of notice issued in case No.966 of 2000.

4. PW1, Sanjeev Sethi had adduced evidence that he is a lawyer employed in the complainant’s firm and that the power of attorney given to him by his firm had been marked as Ex.P1. PWl adduced evidence, which is corroborative with the statements made in the complaint and in support of his evidence, he had marked the documents listed as Exs.Pl to P5.

5. PW2, Parthasarathy had adduced evidence, that he is the Manager of Bank of Madura, Mambalam Branch and that the power of attorney given to him by his firm had been marked as Ex.P7. He deposed that when the said cheque (Ex.P2) was presented at his bank for collection, it was returned unpaid due to “insufficient funds” in the account of accused. In support of his evidence, he had marked the bank account statement of accused as Ex.P8.

6. RW1, the accused had adduced evidence that she had not borrowed any loan from the complainant and that when the case of her husband was pending on the file of the court, the cheque had been deposited in the bank without giving any notice to him. She deposed that the complainant’s firm had given a receipt for payment made by her and that when she had asked for the receipt she was informed that the receipt would be given after the return of the manager who had gone on outstation work. She deposed that she had given a demand draft on 10.1.2001 to the complainant and that the copy of receipt with endorsement of notary had been marked as Ex.R1. She deposed that she had also paid a sum of Rs.l0,000 on 10.10.2001 through pay order marked as Ex.R2 and that the copy of notice given by the complainant stating that they would withdraw the complaint had been marked as Ex.R3.

7. It had been argued on the side of the accused that a cheque had been issued to the complainant prior to entering into an agreement. During the pendency of the case, the accused and complainant had entered into an agreement, for settlement of loan. It was contended that the accused had paid a sum of Rs.25,000 through demand draft on 10.6.2001 and that the complainant had also issued a receipt