The novel question posed in this case is whether a complaint under Sec. 138 of the Negotiable Instruments Act can be maintained if the cheque amount in a post dated cheque is larger than the actual debt due on the date of transaction.

2. The appeal is by the complainant in C.C. No.554 of 1997 of the Judicial First Class Magistrate Court, Adoor. He is aggrieved that the complaint filed by him alleging offence under Sec. 138 of the Negotiable Instruments Act arising from dishonour of Ex.P-1 cheque for Rs.1 lakh ended in acquittal of the accused (present respondent).

3. The learned counsel for the appellant submitted that the trial Court has failed to appreciate the scope and ambit of the presumption arising from Sec. 139 of the Negotiable Instruments Act and that the acquittal of the accused has resulted in a miscarriage of justice. Reliance was also placed on the fact that Ex.D-1 which was produced by the accused to contend that the cheque was issued in connection with a totally different transaction is a forged document as found by the trial Court.

4. According to the learned counsel for the respondent, the cheque in question cannot create a cause of action for the complainant in so far as it was admitted by P.W. 1 that only a sum of Rs. 80,000 was given to the accused on 15.1.1995 whereas the amount mentioned in Ex.P-1 cheque bearing date 15.1.1997 is Rs.1 lakh. The counsel further submits that in view of the admitted fact that the actual consideration that is alleged to have passed is only Rs. 20,000 lesser than the amount mentioned in the cheque, the cheque is incapable of creating a cause of action under Sec. 138 of the Negotiable Instruments Act. As regards the finding regarding forgery in the matter of Ex.D-1, it is argued that the weakness of the defence case does not enable the complainant to have a walk over and that has to win or lose based on the strength of his own case.

5. On the arguments advanced in the case, the points that arise for decision are:

(1) Whether the difference in the amount mentioned in the cheque vis-a-vis, the amount of consideration that allegedly passed under Ex.P-1 is incapable of conferring cause of action to the complainant?

(2) Whether Ex.P-1 cheque was issued in discharge of a legal liability?

(3) Whether the first respondent has committed the offence under Sec. 138 of the Negotiable Instruments Act?

(4) Reliefs.

6.Point No.1: It is admitted by P.W. 1 as also in the complaint that only a sum of Rs.80,000 was given to the accused on 15.1.1995 and that Ex. P-1 is actually for a sum of Rs.1 lakh. According to the learned counsel for the respondent, the cheque is not for the consideration received and that disables the complainant to file a complaint based on Ex.P-1 cheque. The question then is whether the cheque amount should be the same as the amount of consideration that actually passed on the date of transaction.

7. Sec. 138 of the Negotiable Instruments Act reads as follows:

"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 impression for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: xxxxxxxxxxxx

Explanation: For the purpose of this section, "debtor or other liability" means legally enforceable debt or other liability". [Emphasis supplied]

8. A perusal of the aforesaid provision shows that