Kerala High Court
C.V. Alexander vs Joseph Chacko on 12 July, 1993
Equivalent citations: [1995]82COMPCAS368(KER)
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. The appellant was the complainant in the lower court. He filed this appeal in challenge of the order of acquittal of the respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act").
2. The appellant filed the complaint in the lower court based on exhibit P-1 cheque (for Rs. 56.000, dated October 3, 1990) which was issued by the respondent. When the cheque was presented for encashment it was returned unpaid by the bank concerned on the ground "payment stopped". The complainant then issued a notice to which the respondent sent a reply. As the respondent failed to pay the amount within fifteen days of the receipt of notice, the complaint was filed in the lower court. After taking evidence, the lower court acquitted the respondent.
3. The stand of the respondent in the lower court is this : The respondent did not owe any liability or debt to the complainant. However, one Mohammad Yunus (DW-1) owed some money to the complainant. As DW-1 was in impecunious condition and as the complainant insisted on repayment of the debt, the respondent went to the rescue of DW-1 and issued the cheque.
4. The learned Magistrate found that DW-1's story is true and hence he expressed the opinion that since the respondent did not owe any debt or liability to the complainant, Section 138 of the Act is not attracted. It was on the said premise that the respondent was acquitted.
5. Learned counsel for the appellant contended that even if the defence version is accepted the respondent cannot escape from Section 138 of the Act. The section deals with a cheque drawn by a person "for the discharge, in whole or in part, of any debt or other liability." The section does not say that the cheque should have been drawn for the discharge of any debt or other liability of the drawer towards the payee. If the intention of Parliament was otherwise the words "of any debt or other liability" would have been further qualified by adding the words "of the drawer". Even in Section 139 of the Act, by which a legal presumption is created Parliament has only fixed the presumption that the cheque was received "for the discharge, in whole or in part, of any debt or other liability." This means, the debt or other liability may be due from any person. It is not necessary that the debt or liability should be due from the drawer.
6. As the object of the Legislature in bringing forth a new provision like Section 138 is to enhance the credibility or acceptability of cheques, it is immaterial that the cheque was issued for discharge of his own debt or liability. It can be issued for the discharge of another man's debt or liability.
7. A single judge of the Madras High Court has taken tbe same view (vide Krishan Bai v. Arti Press [1992] 2 KLT 40 ; [1994] 80 Comp Cas 750). The following observations of Padmini Jesudurai J. are useful in this context (at page 753 of 80 Comp Cas) :
"... the debt or liability towards which the cheque is issued should be a legally enforceable debt or liability. This would have reference to the nature of the debt or liability and not to the person against whom the debt or liability could be enforced. This is clear by the use of the words 'any debt or liability' which would include a cheque drawn by one person towards a legally enforceable debt or liability of another person. The significant omission of the words 'debt or other liability of that person' after the words 'any debt or liability' would indicate the intention of Parliament."
I am in respectful agreement with the aforesaid observations.
8. Learned counsel for the respondent then contended that even if such a view is adopted the complainant cannot succeed as the cheque was returned due to the fact that payment was stopped by the drawer and that is not one of the grounds which could constitute the offence under Section 138 of the Act. Since the said argument was not addressed before the trial court that point has to be considered by the trial court.
9. I, therefore, set aside the order of acquittal and remit the case to the trial court for disposal of the case afresh on the evidence already on record.
Criminal appeal is accordingly disposed of.