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2009(1) Bankmann 201 (Kar.)
KARNATAKA HIGH COURT
H.V.G. Ramesh, J.
Q-Soft System & Solution
(P.) Ltd. —Appellant
versus
H.N. Giridhar —Respondent
Criminal Appeal No. 1747 of 2007
Decided on 14.12.2007
Counsel for the Parties:
For the Appellant:Mr. C.G. Shashivardhan, Advocate.
For the Respondent: None.
IMPORTANT POINT
The onus of accused to rebut presumption U/s 139 of N.I. Act is not as heavy as that of prosecution and it is only needed to rebut the presumption by probable defence.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Cheque must have been issued for discharge in whole or in part of any debt on other liability—Initial presumption in favour of complainant—Onus of accused is however not as heavy as that of prosecution—Appeal against acquittal—Respondent had issued chaque for Rs. 2 lakh pursuant to agreement with appellant to serve appellant for two years—Respondent quit service of appellant before two years—Defence plea was that respondent was transferred to other city and amount paid to him was hardly sufficient to meet day to day expenses—It was not a straight—Case of breach of contract—Another defence was that cheque had been obtained by coercion–case was purely a matter of civil transaction to be adjudicated whether there was a breach of contract—Acquittal called for no interference.
Result Appeal dismissed Courts referred.
H.V.G. Ramesh, J.—This appeal is against the order of acquittal passed by the 16th Addl. CMM, Bangalore, dated 1.10.2007.
2. Heard the counsel for the appellant.
3. The case of the appellants that the respondent being the Software Engineer has issued a cheque for Rs. 2 lakh in favour of the appellant pursuant to the agreement entered into between him and the appellant to serve the appellant/company for a period of two years and after his appointment he had also been imparted training at the cost of the Management; subsequently, after having worked for three months, respondent left the service of the company and thereby caused loss to the appellant. As such, complaint came to be filed by the appellant stating that by virtue of the agreement when the cheque had been issued it becomes enforceable debt. As against it, the Trial Court, after inquiry, dismissed the complaint on the ground that there is a contract between the parties and there is a breach of contract and although, the cheque was issued for Rs. 2 lakh by way of damages, it is purely a civil transaction and, as such, the accused is not guilty of the offence alleged and, accordingly, has acquitted him.
4. Along with this appeal an application for special leave is also filed. On perusal of the order of the Trial Court it is seen that the respondent/accused had not issued the cheque either to clear of any debt or in connection with any other transaction, since subsequent to his appointment after the training, the respondent had been transferred to Mumbai, expressing his difficulties, he shown to have refused to continue the services at Mumbai.
5. According to the appellant, the respondent herein has joined the services of the appellant/Q-Soft System and Solutions on 15.2.2005 as per Ex. P11 and in the event if he leaves the job before completion of two years of service he has to give damages of Rs. 2 lakh to the company and in this connection an agreement is also entered into wherein the respondent had issued a cheque for Rs. 2 lakh and that without any reasons, the respondent has violated the terms and conditions and despite taking action he did not pay the amount, as such, the complaint was filed under Sec. 138 of N.I. Act.
6. The defence of the accused/respondent is that he was selected on temporary basis, except admitting the signature in the cheque he denied all other contents in the cheque. According to him, within two months itself the complainant had transferred him to Mumbai to work only for Rs. 5,000/- . Since the climate at Mumbai was not suitable to him and also that the amount of Rs. 5,000/- was not sufficient to meet out his livelihood and expenditure, after working for few days at Mumbai he returned back to Bangalore and thereafter he was harassed by the complainant. It is his specific contention that violating the human rights he has been exploited and he had been removed from the service; the cheque was obtained under coercion and that he has not voluntarily given the cheque; the date and other contents in the cheque are being forged by the complainant except the signature. Accordingly, it is contended that he is not liable to pay the cheque amount. Further according to him the cheque so collected by him is not towards any liability by way of debt and it was given only as a matter of security; even the complainant had obtained the award in conciliation, as such, the complaint is not maintainable since simultaneously two proceedings cannot be initiated against the same person.
7. As per Sec. 138 of N.I. Act, 1881, the liability would arise on the part of the drawer when the cheque is issued for the discharge in whole or in part, of any debt or other liability, is returned by the Bank unpaid. The object of Sec. 138 is to inculcate faith in the efficacy of Banking operations and credibility in transacting business on negotiable instruments. Despite civil remedy, Sec. 138 intended to prevent dishonesty on the part of the drawer of negotiable instrume
