A conviction under Section 138 of the Negotiable Instruments Act requires proof of a legally enforceable debt at the time of cheque issuance; absence of such proof invalidates the conviction.

JUDGMENT AND ORDER :

DEVASHIS BARUAH, J.

This is an application filed under Section 401 read with Sections 397 & 482 of the Code of Criminal Procedure, 1973 for setting aside the order dated 13.04.2022 and the consequential order dated 15.12.2022 passed by the learned Chief Judicial Magistrate, Kohima, Nagaland in Negotiable Instruments Act Case No.1/2022.

2. I have heard Ms. V. A. Therie, the learned counsel appearing on behalf of the petitioner and Mr. E. Thiba Phom, the learned counsel appearing on behalf of the respondent No.1 as well as Mr. N. Longkumer, the learned counsel appearing on behalf of the respondent No.2.

3. The specific case of the petitioner herein in respect to the challenge to the orders dated 13.04.2022 and 15.12.2022 impugned in the instant proceedings is that the learned Court of the Chief Judicial Magistrate, Kohima, Nagaland, i.e. the learned Trial Court had passed the impugned order dated 13.04.2022 without arriving at the findings that the cheque was issued for discharge of an enforceable debt or liability. It was submitted that without such a finding, the offence of Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act of 1881’) cannot be made out. Ms. V. A. Therie, the learned counsel appearing on behalf of the petitioner has referred to the judgment of the Supreme Court in the case of Indus Airways Private Limited and Another vs. Magnum Aviation Private Limited and Another, reported in (2014) 12 SCC 539.

4. This Court had duly perused the impugned order dated 13.04.2022 whereby the learned Trial Court merely on the basis that the cheque was issued by the petitioner in favour of the complainant; the cheque having been dishonoured on presentation and no steps were taken by the petitioner inspite of service of the notice had passed the impugned order convicting the petitioner under Section 138 of the Act of 1881 along with a direction to pay a fine of Rs.15,00,000/- which shall be deposited by the petitioner within 30 days before the Court.

5. This Court finds it very pertinent to observe that in the entire impugned order dated 13.04.2022, there is not a single whisper that the cheque in question was issued in discharge of an enforceable debt or liability. In this regard, this Court finds it relevant to take note of the judgment placed by the learned counsel appearing on behalf of the petitioner, i.e. Indus Airways Private Limited (supra) wherein the Supreme Court observed at paragraph Nos.8 & 9 as herein under:-

“8. The interpretation of the expression ‘for discharge of any debt or other liability’ occurring in Section 138 of the N.I. Act is significant and decisive of the matter.

9. The explanation appended to Section 138 explains the meaning of the expression ‘debt or other liability’ for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an existing debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability.”

(emphasis supplied on the underlined portion)

6. From the above quoted paragraphs, it would be therefore seen that the Supreme Court categ