IMPORTANT POINT
If cheque is not issued for discharge of any debt or other liability, Section 138 of NI Act cannot be invoked

Bhatia J.H., J.—Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties.

2. There is no dispute that the respondent No. l/complainant and M/s. Encon Engineering and Contractors (Hereinafter. referred to as ‘Contractors’) had entered into an agreement on 28th January, 2005 whereby Contractors had undertaken to carry out certain works for the respondent. As per the said contract, Contractors deposited the sum of Rs. 10 lacs by undated cheque No.027840 drawn against South Indian Bank Ltd., Palarivattom Branch, Cochin branch with the respondent No.1 as refundable security deposit for the due performance of the agreement. The said undated cheque was in custody of the respondent No.1 and it appears that the respondent No.1 filled in the date on undated cheque as “4.6.2008”. The cheque was presented to the drawee bank through the banker of the respondent No. 1. Cheque was returned unpaid on the ground that the drawer had stopped the payment. Therefore, notice was issued by the respondent to the contractor as well as it’s managing partner for the payment of the cheque amount. In spite of notice, payment was not made. Therefore, the respondent No.1 filed complaint under section 138 of the Negotiable Instruments Act, in the Court of Metropolitan Magistrate 44th Court, Andheri. Process was issued against the accused, who is the petitioner before this Court. Petitioner/accused challenged the issuance of process by filing revision application No.789/2009 before the Sessions Court, Gr. Bombay. By the impugned order dated 8th June, 2009, the learned Additional Sessions Judge rejected the revision application. Hence, this petition.

3. At the outset it may be stated that before the Revisional Court, petitioner had taken several grounds challenging the issuance of process. However, during the arguments before this Court, the learned Counsel for the petitioner restricted the challenge only to one point. According to him, cheque was not issued in discharge of any debt or liability and as the cheque was issued as security deposit, provisions of section 138 are not applicable. The learned Counsel placed reliance upon several authorities in support of his contention. The learned Counsel for the respondent complainant contended that the said cheque was deposited in lieu of the amount of Rs. 10 lacs which would be otherwise required to be deposited as security by the contractor with the respondent for due performance of the contact and, therefore, it must be held that the cheque was issued in discharge of “other liability.”

4. Section 138 of the Negotiable Instruments Act provides that where any cheque was drawn by a person on account maintained by him with the banker for the payment of any amount of money to another person for discharge in whole or in part of any debt or other liability and it was returned by the drawee bank unpaid either because the amount of money in the account is insufficient or it exceeds the amount arranged to be paid, such person shall be deemed to have been committed offence and shall be liable to punishment with imprisonment or with fine or with both. Of course, before the offence is committed, several other conditions are required to be fulfilled. We are not concerned with the same for the decision of the present matter. Important ingredient for the offence punishable under section 138 is that cheque must have been issued for the discharge in whole or in part of any debt or other liability. If the cheque is not issued for the discharge of any debt or other liability, section 138 can not be invoked. It is now well settled legal position that if the cheque is issued only as security for performance of certain contract or an agreement and not towards the discharge of any debt or other liability, offence punishable under section 138 is not made out. In (Travel Force v. Mohan N. Bhave and Another)1 the cheque in question was issued by the accused for investment in fixed deposit and it was accepted by t