IMPORTANT POINT
When Post dated cheques were issued but agreement between parties showed that there was no intention to create any debt or other liability prosecution under Section 138 of Negotiable Instruments Act could not be sustained.

ORDER

S.C. Pandey, J.- This revision is directed against the order dated 25-101999 passed by Judicial Magistrate First Class. Jabalpur in Criminal Case No. 814/1999.

2. The non-applicant Ravikant Talwar filed a complaint against the applicant under Section 138 of the Negotiable Instruments Act 1881 (henceforth 'the Act). The non-applicant alleged in his complaint that he is the holder of power of attorney of one Shri Shashikant Talwar. The applicant and the complainant entered into two agreements dated 8.-5-1990 and 10-5-1992. whereby the applicant was required to construct building No. 183. A.P.R. Colony. Katanga. Jabalpur. Pursuant to the aforesaid agreements it is alleged that the non-applicant advanced Rs. 2.70.000/- to the applicant. It was agreed that the work of construction of above mentioned house shall be over by 30-8-1992. It is alleged in the complaint that the applicant was not able to deliver the completed building by 30-8-1992 and. therefore the non-applicant agreed to extend the time till 30-4-1993. It is alleged in the complaint that pursuits to the aforesaid agreements three post-dated cheques dated 30-4-1993 were issued by the applicant in favour of the non-applicant bearing No. 0646945 of Rs. 30.000/-. No. 0646946 of 30.000/- and No. 0646947 of Rs. 40.000/-. These cheques were in respect of the deposit of the applicant in the Bank of India. Napier Town Branch Jabalpur. It is alleged that after 30-4-1993 when the construction was not completed the non-applicant presented the cheques to the Bank of India on 5-5-1993. The Bank dishonoured the cheques issued by the applicant with the remarks that "Refer to Drawer Insufficient - Funds". The dishonoured cheques alongwith the advice of the Bank were returned to the non-applicant on 7-5-1993.

3. Thereafter the non-applicant served a notice dated 18-5-1993 to the applicant under Section 138 of the Act which was received by the applicant on 19-5-1993. In the notice a demand of Rs. 1.00.000/- (Rupees One Lakh) was made by the non-applicant. On receiving no response from the applicant the non applicant filed a complaint under Section 138 of the Act on 18-6-1993 within the period of limitation prescribed there for.

4. On the aforesaid allegations and after registering the complaint and noticing the applicant the Court proceeded to examine the non-applicant. Ravikant Talwar before framing the charge. Thereafter, it framed the charge on 5-10-1999 against the applicant Jitendra Singh F'lora.

5. Shri Ranjan Banerjee learned counsel for the applicant in this revision has argued that no offence under Section !38 of the Act is made out on the ground that Section 138 of the Act is attracted where a person issues Cheque in order to discharge in whole or in part any debt or other liability. It was the contention of learned counsel for the applicant that there was no debt or other liability which could be legally held to be debt or other liability in the eyes of law. It was contended by the learned counsel for the applicant that the cheques issued by the applicant were of normal nature and did not create any liability in favour of the non-applicant. The cheques were issued by way of security for giving timely discharge of the construction of building. In such cases no offence is made out for the reason already stated above.

Nobody appeared to support the case of the non-applicant before this Court.

6.' In order to examine if the applicant is guilty of offence committed under Section 138 of the Act, it is necessary to consider this fact of the nature of the agreements entered into by the parties. The first agreement is dated 8-5-1990. The other agreement is dated 10-5-1992 and the third agreement dated 10-2-1993. These agreements are cumulatively marked as Annexure P/3.

In the agreement dated 8-5-1990, the cost of construction is mentioned as Rs. 3.00.000 (Ruppes Three Lakhs) and the details of the buildings to be constructed upon plot No. 183. A.P.R. Colony. Katanga. Jabalpur are