IMPORTANT POINT
If the cheque is drawn by the accused without accepting liability of another in writing, it does not attract Section 138 N.I. Act.

Tahilramani V.K. (Smt.), J.—The applicant original complainant has preferred this application for leave to appeal against the judgment and order dated 22.8.2007 passed by the learned Metropolitan Magistrate, 13th Court, Dadar, Mumbai in C.C. No.893/SS/2004. By the said judgment and order, the learned Magistrate acquitted the respondent accused of the offence under Section 138 of Negotiable Instruments Act.

2. I have heard the learned Advocate for the applicant and the learned APP for the State. I have perused the judgment and order as well as the record in the present case.

3. The case of the complainant is that the cheque in question was issued in respect of loan of Rs. 14,50,000. No documents have been placed by the complainant on record to show payment of loan to the accused. It is seen that there is no oral or documentary evidence in respect of payment of loan to any of the accused.

4. Complainant has stated in his examination in chief that in the month of December, 2000 against loan of Rs. 14,50,000, accused No. 2 executed one letter dated 12.12.2000 in the form of Promissory Note and promised to pay bearer thereof the aforesaid amount on due date. The said letter is at Exhibit-14. Perusal of Exhibit 14 reveals that same is not addressed to the complainant nor does this letter show that against which liability, the accused promised to pay the amount of Rs.14,50,000. Moreover, the complainant in his cross-examination has admitted that the said letter is not directly received by him from the accused. From the cross-examination of the complainant, it is seen that the letter Ex. 14 was received by him along with cheque Ex. 15 on 7.6.2001 from Srushti Financier. It is clear that the letter Ex. 14 is not received by the complainant in connection with any liability in respect of both the accused persons. It is pertinent to note that complainant has not stated anywhere that any loan was paid to the accused persons and against such loan, Promissory Note Ex. 14 was issued.

5. Complainant in cross-examination further disclosed that he received the cheque Ex.15 from Srushti Financier. However, there is no material on record nor it is the case of the complainant that any liability of Rs.14,50,000 was existing against Srushti Financier and same is accepted by the accused and issued cheque Ex.15 for discharging liability of Srushti Financier. No any document is placed on record by complainant to show any relation of the accused in respect of any loan transaction between the complainant and Srushti Financier. It is also not the case of the complainant that accused accepted the liability of Srushti Financier and issued the cheque. No any document creating the liability of the accused is produced on record. If the cheque is drawn by the accused without accepting liability of another in writing, it does not attract Section 138 of N.I. Act. In this regard, reliance can be placed on the case of Hiten Sagar and another v. IMC Ltd. and another1 wherein this Court has held that:

“if the cheque drawn for discharge of liability of another person without creating any document, it does not come under section 138 of N.I. Act.”

6. So, in view of the above reason, it is clear that on the date of cheque Ex. 15, no any liability was existing against the accused and no any evidence that liability on the date of cheque was existing against the Srushti Financier and same was accepted by the accused and hence he issued the cheque.

7. So far as validity of cheque Ex. 15 is concerned, it is admitted by the complainant that cheque Ex. 15 was self drawn cheque received by him from Srushti Financier. He further in cross-examination has disclosed that word “self” from the column of payee of cheque Ex. 15 is struck by him and he wrote his own name. So cheque is already altered by the complainant by putting his name after stricking of the word “self” from the column of payee. It is also admitted that for changing the name of payee, no consent of the accus