The appellant is the complainant in case instituted against the respondent/accused alleging an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’).

2. According to the appellant, the court below was not justified in acquitting the accused, finding that the case set up by the appellant/complainant that the accused had borrowed an amount of Rs.50,000/-, and in repayment of that Ext.P1 cheque was issued in discharge of that liability, was not correct. In Ext.P5 reply notice, the accused had admitted the transaction between the two, admitted the issuance of the cheque and admitted some liability towards the complainant. In such circumstances, when Ext.P1 cheque had been admittedly issued by the accused and it has been proved that it has been returned for want of sufficient fund in the account maintained by the accused, necessarily the case would have ended in conviction, it is submitted. In this connection, the decision reported in I.C.D.S. Ltd. v. Beena Shabeer (2002 (3) KLT 218) has been relied on.

3. It is submitted by the accused that there was transaction of gold with the accused and the cheque in question issued was a blank cheque. The liability, as mentioned in the complaint, had never been incurred. Therefore, there was no liability, as mentioned in the complaint, so far as the accused is concerned. In such circumstances, the court below was justified in acquitting the accused, the counsel submits.

4. In the light of the decision in I.C.D.S. Ltd. v. Beena Shabeer (2002 (3) KLT 218) now, it is trite, that the liability in terms of section 138 of the Act cannot be avoided in the event of the cheque being returned by the banker unpaid for whatever reasons the cheque had been issued to the complainant. The Apex Court had held that “the legislature has been careful enough to record not only discharge in whole or in part of any debt, but the same includes other liability as well.”

5. In Ext.P5 reply notice, the accused had admitted that Ext.P1 had been issued as a security for the transaction between the parties. The cheque is thus admitted. Some transaction between the two is also admitted. Ext.P5 further reveals the preparedness of the accused to discharge the liability, whatever existed between the parties then, for which time was available till 20.2.1998. Thus, the case set up in Ext.P5 reply notice was that until that date, the complainant did not have locus standi to present the cheque.

6. Thus the evidence on record reveals that Ext.P1 cheque has been issued by the accused and that it bounced for want of sufficient fund and that the accused did have transaction with the complainant and there was some liability on the part of the accused. In such circumstances, unless the accused adduces sufficient cogent evidence to rebut the presumption in terms of Section 118 and 139 of the Act, he cannot avoid the criminal liability arising under Section 138 of the Act, when some liability is admitted in Ext.P5. He cannot take up a contention that the cheque was issued as a security to the transaction between the two, in the light of the decision cited above. Even that liability will also be included to attract section 138 of the Act. The contention that the cheque was blank one will also not hold good, going by the decision referred above. Even if a blank cheque is issued as a security, the person in possession of the blank cheque can enter the amount of the liability and present it to the bank. When a blank cheque is issued by one to another, it gives an authority on the person, to whom it is issued, to fill it up at the appropriate stage with the necessary entries regarding the liability and to present it to the bank. In the light of this, the accused cannot be absolved of the liability. He is, therefore, liable for conviction, reversing the impugned judgment.

3. Accordingly, I convict the accused and sentence him as follows:

(1) He shall undergo imprisonment for a day until the rising of the