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2007(2) Bankmann 425
KERALA HIGH COURT
K. A. Abdul Gafoor, J.
Supply House, Represented by
Managing Partner —Appellant
versus
Ullas Proprietor, Bright Agencies
& Anr. —Respondent
Crl. A. No. 1154 of 2002
Decided on 30-5-2006
Counsel for the Parties:
For the Appellant:Mr. T.M. Chandran, Advocate.
For the Respondents:Mr. Grashious Kuriakose, Advocate and Mr. P.M. Habeeb, Public Prosecutor.
IMPORTANT POINT
In order to deem that one had committed offence under section 138, the amount covered by cheque shall be either in discharge of liability incurred by drawer, either in full or in part.
Headnote:Negotiable Instruments Act, 1881—Section 138—Complaint alleging dishonour of cheque—Acquittal of accused as cheque not issued in discharge of liability to tune of amount covered by it—In order to deem that one had committed offence under section 138, the amount covered by cheque shall be either in discharge of liability incurred by drawer, either in full or in part—It cannot in any way be in excess of liability incurred—Unless complainant proves that liability to be settled is to tune of amount covered by cheque, he cannot make use of that cheque for such liability—Exp 1 cheque could not be stated to be one issued in discharge of liability to tune of amount covered by it—Cheque was really issued as price amount for 28 number of mixes which complainant had not supplied—What was amount so due on settlement was not proved by complainant—Whether it was in excess of amount covered by Ext. P1 or whether it was less than amount covered by Ext. P1 was a material aspects as regards alleged liability on that count—Acquittal of accused could not be stated be unjustified to invite interference in appeal—Appeal dismissed. (Paras 4, 5)
Result: Appeal dismissed.
K.A. Abdul Gafoor, J.—Acquittal of the respondent for the offence punishable under Section 138 of the N.I. Act is assailed in this appeal by the complainant. According to him, he was a dealer in household articles. Accused also did have a shop of the similar articles somewhere else. The accused used to purchase articles on credit from the shop of the complainant. On this count amount was due from the accused. He issued Ext. P1 cheque. It was a post-dated one bearing date 24.3.1998 for an amount of Rs. 58,520 drawn on State Bank of India. Thodupuzha. It was presented to the Bank in August, 1998. It bounced as is revealed by Ext. P2. There upon complainant made a demand for payment of the amount covered by Ext. P1 cheque by issuing a notice. Ext. P4. This was responded to in Ext. P7. As the complainant did not get payment, prosecution was launched. The case of the accused was that Ext. P1 cheque was issued as price of 28 number of mixies, which he had ordered from the complainant on 9.2.1998. But the complainant failed to supply the item. Therefore he issued Ext. D4 stop memo to the Bank, on 10.3.1998. Copy of the order that he had placed was produced as Ext. Dl. That was on 9.2.1998. As the complainant did not honour the order placed in Ext. Dl for which Ext. P1 cheque was issued, it was not towards discharge of any liability that the accused did have at that time towards the complainant. So no case to attract Section 138 had been made out; the accused defended the case.
2. Appreciating the evidence on record the Court below found that Ext. P1 cheque was not one issued in discharge of the liability that the accused had incurred towards the complainant.
3. It is submitted by the appellant that going by Ext. D3 and Ext. P5, the accused had admitted liability towards the complainant. In Ext. D3 dated 16.3.1998 the accused had even though intimated the complainant not to present the cheque in question in Bank, he had agreed to settle the account later. This is also revealed from Ext. P8 communication issued by the complainant on 12.8.1998 as well. Thus when there was liability incurred by the accused towards the transaction subsisting between the parties the appellant was justified in presenting Ext. P1 cheque towards the subsisting liability, even though it was issued as price of the 28 numbers of mixies ordered as per Ext. Dl. As on the date of the presentation of the cheque for encashment in the Bank, as revealed by Exts. D3 and P8 there was subsisting liability from the part of the accused towards the complainant. Therefore Ext. P1 cheque cannot be stated to be one issued otherwise than towards discharge of the liability.
4. Ext. Dl dated 9.2.1998 is the order that the accused had placed with the complainant. It disclosed that he was ordering 28 numbers of mixies and that he was enclosing therewith Ext. P1 cheque for Rs. 58,520 being the price amount for 28 number of mixies ordered. Order was placed on 9.2.1998 and the cheque is dated 24.3.1998. It was thus a post-dated cheque towards the price amount of the 28 number of mixies thus ordered. Ext. D4 is the stop memo that the accused had issued to his Bankers directing the Bank that, the cheque had been issued along with an order placed by the accused on the complainant who failed to supply the articles so ordered and therefore the amount as per the cheque shall not be paid. This was as early as on 10.3.1998 even before the date of Ext. P1 cheque and far earlier than its presentation by the complainant in the Bank. It is after that he intimated to the complainant in Ext. D3 letter dated 16.3.1998 that he had not given the articles ordered and therefore the cheque shall not be presented to the Bank. Of course, it contains a further request that settlement of the other transactions could be done later. Thus even before the date of the cheque, the accused had informed the complainant that it shall not be presented to the Bank because of the failure of the complainant himself i
