HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2323 of 2004 JUDGMENT: The complainant ﬁled this appeal against acquittal of the accused recorded by the lower Court. The complainant ﬁled the case against the respondents 1 and 2/A.1 and A.2 alleging oﬀence under Section 138 of the Negotiable Instruments Act, 1881. There is no dispute that A.2 as Director of A.1 Company had drawn Ex.P.4 cheque for Rs.1,89,405/- in favour of the complainant alleging that the said cheque when presented for payment, was dishonoured. The complainant got issued Ex.P.6 notice to the accused and thereafter ﬁled the present case in the lower Court as payment was not made in compliance of the notice. 2. At this stage, there is no dispute about the complainant supplying gear box to the accused for Rs.2,75,891/- and that subsequently as it was defective, the gear box was replaced. It is alleged in the complaint that the replaced gear box was of the value of Rs.3,78,809/- as per invoice and that by adjusting 50% of the amount towards the old gear box, the accused have drawn the cheque in question for Rs.1,89,405/-, which cheque was stated to have been dishonoured when presented for payment. 3. The lower Court dismissed the complaint on two grounds, namely that the complainant has failed to prove by ﬁling dishonoured memo showing dishonour of Ex.P.4 cheque; and that the accused have paid value of the cheque amount by way of demand draft on the next day. In my opinion, both the grounds on which the lower Court negatived the complainant’s claim are legal and well founded. The complainant did not ﬁle dishonour memo relating to Ex.P.4 cheque. Even though Section 146 of the Act prescribes that on production of bank’s slip or memo, having thereon the oﬃcial mark denoting that the cheque has been dishonoured, the Court shall presume the fact of dishonour of cheque, unless and until such fact is disproved since the complainant has failed to produce any such slip or memo of dishonour, Section 146 of the Act cannot be invoked herein. But, the complainant examined oﬃcials of his own bank and banker of the accused as PWs.2 and 3 respectively to speak to presentation of the cheque and dishonour of the same. The lower Court noticed that neither PW.2 nor PW.3 produced any records showing presentation of the cheque for payment and dishonour of the cheque by banker of the accused. Even though oral evidence of PWs.2 and 3 may be suﬃcient to prove the factum of dishonour, their evidence may not be suﬃcient because the records actually show the date of dishonour and the date of communication of the dishonour to the complainant, from which date the complainant is expected to give statutory notice to the accused within the prescribed period under Section 138(b) of the Act. Ex.P.5 debit advice of the complainant’s bank relates to debiting of the amounts covered by Ex.P.4 cheque and another cheque in the complainant’s account. It appears that the complainant’s banker had previously purchased Ex.P.4 cheque and another cheque by way of ‘bills purchase’ (B.P.) and credited their value in the complainant’s amount and since the cheques were stated to have been dishonoured, the credited amounts in the complainant’s account were reversed and the said fact was intimated by the banker to the complainant by Ex.P.5 debit advice. Ex.P.5 is not a dishonour memo at all. In the absence of ﬁling dishonour memo and in the absence of the date of communication of dishonour by the complainant’s banker, the complainant cannot succeed in this case. 4. Secondly, PW.1 in cross-examination stated that demand draft for Rs.1,89,405/- dated 05.11.1999 and Ex.P.4 cheque for Rs.1,89,405/- dated 04.11.1999 were received by the complainant together. Both cannot be received together because the demand draft for the same amount bears subsequent date. Even if Ex.P.4 cheque is said to have been dishonoured, it was replaced by demand draft for the equal amount on the next day. Therefore, the complainant has no cause of action to present the cheque for payment or to maintain the complaint against the accused, since value of the alleged dishonoured cheque was already received by the complainant. 5. Therefore I do not ﬁnd any valid or legal reasons to come to a diﬀerent conclusion in this appeal from that of the lower Court. 6. In the result, the appeal is dismissed. ____________________________ SAMUDRALA GOVINDARAJULU,J Dt. 2nd December, 2011. PNV`