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DELHI HIGH COURT
A.K. Pathak, J.
M/s. The Jammu & Kashmir Bank —Petitioner
versus
Abhishek Mittal —Respondent
Crl. A. No. 294/2011,
Decided on 26.5.2011
IMPORTANT POINT
A person issuing a blank cheque cannot escape his liability only on ground that blank cheque had been issued by him.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Acquittal—There is no law that a person drawing cheque has to necessarily fill it up in his own handwriting—Respondent has not denied his signatures on cheques—Once he has admitted his signatures on cheques he cannot escape his liability on the ground that same has not been filled in by him—A person issuing a blank cheque is supposed to understand consequences of doing so—He cannot escape his liability only on ground that blank cheque had been issued by him—Trial Court has acquitted respondent solely on the ground that cheques had not been issued by him in discharge of his any legally enforceable liability—For whatever reason if a cheque is drawn on an account maintained by a drawer with its bank in favour of any person for discharge of any debt or other liability ingredients of offence under Section 138 gets attracted—Acquittal of respondent set aside and he is convicted under Section 138. (Paras 6 to 14)
Result: Appeal allowed.
A.K. Pathak, J.—This appeal is directed against the judgment dated 16th August, 2010 passed by the Trial Court whereby respondent has been acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as “the Act").
2. It is the case of the appellant that
M/s Akansha Machine Tools, a sole proprietorship firm of respondent’s father, was enjoying temporary overdraft facility from the appellant. Shri Jitender Sharma was the then Branch Manager of the appellant. Respondent, in discharge of liability of M/s Akansha Machine Tools, issued three cheques bearing numbers 224600 dated 06.03.2006 for Rs. 2,25,000/-, 224598 dated 10.03.2006 for Rs. 1,00,000 and 224599 dated 06.03.2006 for Rs. 1,00,000/- all drawn on Bank of Punjab Ltd. Noida, U.P., in favour of appellant. On presentation, cheques were returned dishonoured for the reason “insufficient funds”. The amount involved in the cheques was not paid by the respondent within the statutory period despite service of demand notice . Thus, respondent had committed offence under Section 138 of the Act.
3. At the pre-summoning evidence appellant examined Mr. Jitender Sharma as CW1. He tendered his evidence by way of affidavit. Trial Court took cognizance of offence and summoned the respondent. Notice under Section 251 Cr.P.C. was framed against him. He pleaded not guilty and claimed trial. During the trial, Shri Devender Kumar Magotra, Authorized Representative of appellant, was examined as PW1. He filed his affidavit in his examination-in-chief, reiterating the averments made in the complaint. He has fully supported the appellant’s version. He proved the cheques in question as Ex. PW1/2 to PW1/4. Cheque returning memos have been proved as Ex. PW1/5 to PW1/7. Demand notice was proved as PW1/8. Postal receipts were proved as PW1/9 and PW1/10. This witness was cross-examined by the respondent’s counsel at length.
4. After appellant concluded its evidence, statement of respondent under Section 313 Cr.P.C. was recorded by the Trial Court on 31st July, 2010. So far as issuance of cheques in question are concerned, respondent stated that he was having’ personal relations with Shri Jitender Sharma and, therefore, had given the cheques in question to him in good faith. He admitted his signatures on these cheques. However, he took a plea that particulars in the said cheques were not filled up by him. He also admitted that the cheques had been returned dishonoured due to the reason “insufficient funds”. In answer to a question that whether he wanted to lead any evidence in his defence, he replied in negative.
5. Trial Court has taken note of the fact that neither the issuance of cheques nor its dishonourment for the reason “insufficient funds” was in dispute, inasmuch as, the cheque amount had not been paid despite service of notice. At the same time, it has returned a finding that ingredients of offence under Section 138 of the Act were not attracted since the cheques had not been issued by the respondent towards discharge of his personal liability. This view has been taken by the Trial Court in para nos. 8 and 9 of the judgment which reads as under:-
“8. One of the ingredients of offence u/s 138 NI Act is the legal liability of the accused to pay the cheque amount. CW/1/AR of complainant in his cross-examination has admitted that the accused was not having any legal liability towards the complainant. Therefore, in view of provisions of Section 138 NI Act, the complainant has not fulfilled the requirement of Section 138 NI Act.
9. In view of my abovementioned observations, this Court is of the opinion that the accused did not have any legally enforceable liability to pay any amount to the complainant, therefore, no offence u/s. 138 NI Act has been committed by the accused. In view of my abovementioned findings; accused stands acquitted.”
6. In this case issuance of cheque, its presentation and dishonourment are not in dispute
