Section
138 of the Act makes a civil transaction to be an offence by fiction of law.
Where any cheque drawn by a person on an account maintained by him with a
banker for payment of any amount of money to another person is returned by the
bank unpaid either because of the amount or money standing to the credit
of that person being insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account, such person subject to the other conditions,
shall be deemed to have committed an offence under100 the said Section and be punished for a
term, which may extend to one year or with fine, which may120 // extend to twice the amount of
cheque or with both. To make the dishonour of the cheque as an offence,
the aggrieved party is required to present the cheque to the bank within
a period of six months from the date on which it is drawn or within the
period of its validity, whichever is earlier and the payee or the holder in
due course of the cheque makes a demand for payment of the cheque amount
by giving a200 notice in writing
to the drawer of the cheque within 15 days of the receipt of information
by him from the bank regarding the return of the cheque as unpaid and drawer of
the such cheque fails to make the240
// payment of the amount within 15 days of the receipt of the said
notice. Section 139 refers to presumption that unless the contrary is
proved, the holder received the cheque of the nature referred to under Section
138 for the discharge in whole or in part or of any debt or other liability.
Section300 140 restricts the defence in any
prosecution under Section 138 of the Act and Section 141 refers to such offence
committed by the companies. Section 142 provides that notwithstanding
anything contained in the Code of Criminal Procedure, no court shall
take cognizance of an offence under the Section except upon a complaint
in writing made360 // by
the payee or as the case may be, the holder of the cheque and that such
complaint is made within one month of the date on which the cause
of action arose under Clause (c) of proviso to Section400 138 of the Act.
Supporting
the judgement of the High Court, the learned counsel appearing for the respondents
has submitted that as upon presentation and dishonour of the cheque by the bank
on 28th May, 1998 which was intimated to the complainant, a cause of action had
accrued, the complaint could be filed only within 30 days from the date of the
alleged receipt of the first notice by the accused. He contends that480 // as according to the complainant
the postal acknowledgement receipt of the notice was received by the
complainant on 15th June,500
1998, the complaint filed by it after 15th July, 1998 was barred by time. During
the investigation of a crime, the police agency is required to hold identification
parade for the purposes of enabling the witness to identify the person
alleged to have committed the offence particularly when such person was not
previously known to the witness or the informant. The absence of test
identification may not be fatal, if the accused is known or sufficiently
described in the complaint leaving no doubt in the mind of the Court
regarding his involvement. Identification parade may also600 // not be necessary in a case
where the accused persons are arrested at the spot.
The
Hon'ble Supreme Court held that the evidence in order to carry
conviction should ordinarily clarify as to how and under what
circumstances, the complainant or the witness came to pick out the particular
accused person and the details of the part which he allegedly played in the
crime in question. In such cases, test identification is considered a
safe rule of prudence to generally look for corroboration of the
sworn testimony of witnesses in Court as to the identity of the accused who are700 strangers to them. There may,
however, be exceptions to this general rule, when the Court is impressed by a
particular720 // witness
on whose testimony, it can safely rely without such or other corroboration.
Though the holding of identification proceedings is not substantive
evidence, yet they are used for corroboration purposes for believing that the
person brought before the Court was the real person involved in the commission
of the crime. The identification parade even if held, cannot in all cases be
considered as safe, sole and trustworthy evidence on which the
conviction of the accused Could be sustained. It is800 a rule of prudence which is required to
be followed in cases where the accused is not known to the witness or the
complainant.
It
is well settled that the substantive evidence is the evidence of
identification in Court and840
// the test identification parade provides corroboration to the
identification of the witness in Court, if required. However, what weight must
be attached to the evidence of identification in Court, which is not
preceded by a test identification parade, is a matter for the Courts of fact to
examine. In the instant case, the Courts below have concurrently the evidence
of900 the prosecutrix to be
reliable and, therefore, there was no need for the corroboration of her
evidence in Court as she was found to be implicitly reliable. We find no
error in the reasoning of the Courts below. From the facts of the case, it is
quite apparent that the prosecutrix did not even know the appellants and did
not960 // make any
effort to falsely implicate them by naming them at any stage. The crime was perpetrated
in broad daylight and the prosecutrix had sufficient opportunity to observe the
features of the appellants. She had also a reason to remember1000 their faces, as they had committed a heinous
offence and put her to shame. She had, therefore, abundant opportunity
to notice their features.1023
