The main legal point established is that the question of whether an offence involves moral turpitude must be determined based on the specific facts of each case and not solely on the section of the offence.

Dhinakar, J.

An interesting question: Whether the offence under S.138 of the Negotiable Instruments Act would involve moral turpitude.

2. To discuss the above question we may narrate a few material facts clipping out unnecessary details. Appellant is a discharged employee of the State Bank of Travancore, who before his discharge, was working as Record Keeper in one of its branches. He issued a cheque to one person which on presentation was bounced back, and he did not pay the cheque amount even after the receipt of a notice. So a complaint was filed by the payee for the offence under S.138 of the Negotiable Instruments Act (for short 'the act). The prosecution ended in conviction of the appellant and in appeal, the sentence imposed was modified and he was directed to pay a fine of Rs. 5,000/- and to pay a sum of Rs. 40,000/- as compensation to the complainant in the case and in default of payment of fine, he was to undergo imprisonment for three months. As he did not pay the line and compensation he was sent to jail and he suffered imprisonment for the entire period.

3. Appellant was discharged from service thereafter holding that his act in issuing a cheque without sufficient funds is an offence involving moral turpitude warranting termination of his services in terms of S.10(b)(i) of the Banking Regulation Act. As against the said discharge order appellant has filed the original petition, but it was dismissed by the learned single judge and hence this writ appeal.

4. Appellant contended that S.138 of the Act is not an offence which i involves moral turpitude. Even if it is so, we were not inclined to use our discretion in favour of the appellant as the payee remained unpaid. Learned counsel for the appellant then produced documents to satisfy us mat the appellant has paid the entire amount covered by the cheque to its payee. Hence, we are now disposed to consider the question raised in this appeal. Per contra, counsel for the respondent Bank tried to justify the action adopted by the Bank in dismissing the appellant from service in view of clause 19.2 of the Bipartite agreement (between the unions of employees, of the Bank and the management) and S.10(b)(i) of the Banking Regulation Act. Clause 19.2 of the Bipartite agreement reads as follows:

"By the expression "offence' shall be meant any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law".

5. 10(i)(b)(i) of the Banking Regulation Act reads thus:

"No banking company shall employ or continue the employment of any person (i) who is, or at any time has been adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been, convicted by a criminal court of an offence involving moral turpitude; or"

A reading of the above clause in the Bipartite agreement and the section in the Banking Regulation Act leaves no doubt in our mind that if an employee is convicted of an offence involving moral turpitude then he is liable to be discharged from service.

5. The contention of the respondents' counsel is that issuing a cheque without sufficient funds in the bank is an act of cheating.

6. We are of the view, that an offence under S.138 of the Act need not necessarily take within its wings the offence of cheating as defined in S.415 of the Indian Penal Code. A cause of action for a criminal prosecution under S.138 of the Act will arise, not on the date of issuance of the cheque, but only when the drawer of the cheque fails to pay the amount within the statutory period after he is called upon by the payee through a notice. A person sometimes may issue a cheque knowing that there is no sufficient fund in his account but still with a hope that he would be able to make arrangements with his bankers to honour the cheque as and when it is presented by the drawee. S.138 is in fact incorporated in the Negotiable Instruments Act only to give more credibility for cheques and not to cover