The necessity for a clear and unambiguous statement of the debt or liability for the issuance of a cheque under Section 138 of the Negotiable Instruments Act.

Dharnidhar Jha. J.- This appeal has been preferred by the appellant Sanjay Kumar Kedia against the order of acquittal dated 10.6.2010 passed by Sushri Akansha Kashyap, Judicial Magistrate, 1st Class, Bhagalpur, in Case No. 2238 of 2006/Tr. No. 119 of 2010 by which she acquitted the respondent of offences under Sections 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act.

2. The lower Court records have been received.

3. The complaint petition itself recites that the complainant was running a wholesale business in clothes, named and styled as M/s Kedia Trading Company, Sujaganj Bazar, Tinkathia Gall, Bhagalpur. The respondent was a retailer in clothes and his establishment was M/s Gaurav Stores situated in the same locality of Sujaganj Bazar but at a different place Hadea Patti. The complainant and the accused used to deal with each other in clothes and sometimes payment used to be made in cash and sometimes by cheque.

4. It was stated that on 27.9.2006 the respondent handed over a cheque of rupees fifty thousand bearing cheque No. 158889 drawn on Indian Bank, Bhagalpur which was accepted by the complainant on account of commercial relationship between the parties. The cheque was presented for encashment on 23.10.2006 but that bounced and, accordingly, an information was received by the complainant. A pleader's notice was given by the complainant to the respondent but in spite of receiving the same he did not make payment. The complainant, as such, inferred that the respondent had issued the cheque in question only with a view to defrauding him and had, in fact, defrauded him of an amount of rupees fifty thousand.

5. After due formalities the solitary accused was summoned and was put on trial.

6. During the course of trial the complainant examined himself as PW 1. Besides the facts stated in the complaint petition, the complainant in his cross-examination in paragraph 3 has stated as to what was the commercial and, specially, the transactional relationship between the complainant and the accused. He has admitted that on earlier occasions also the respondent used to give to him similar cheques for continuing the purchase of clothes on credit. It was stated by PW 1, the complainant, that whenever he gave clothes to the respondent on credit, he used to obtain a cheque from him in lieu thereof and as soon as he used to get back the price of the clothes he used to return the cheque to the respondent. In the same commercial relationship, the complainant stated, he had received the cheque in question and it had been pointed out by the respondent to him that he will pay up the credit amount and shall get back the cheque. The cheque which bounced had been handed over to the complainant under the above terms. Thus, it is evidently clear from the very evidence of the complainant that the presentation of the cheque to the complainant was as a matter of securing the credit amount which was the price of the clothes supplied to the respondent on credit.

7. Section 138 of the Negotiable Instruments Act reads as under :

"Dishonour of cheque for insufficiency, etc. of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) the cheque h