Dishonour of Cheque--Cheque issued in furtherance of compromise which did not materialised--No offence under S.138 of N.I Act is made out

JUDGMENT

Mr. Anil Kshetarpal, J. (Oral):- Prayer for leave to appeal has been made against the judgment passed by learned Judicial Magistrate 1st Class, Ambala acquitting the respondent under Section 138 of the Negotiable Instruments Act, 1881. The findings recorded by the Judicial Magistrate Ist Class reads as under:-

“Foremost requirement for the offence under Section 138 of the N.I. Act is that cheques must be issued by drawer (accused) to discharge the legally enforceable debt or liability. The complaint is silent about the fact that regarding which liability, accused issued the cheques in question. It is only in the affidavit of the testimony of the complainant i.e. CW1/A, complainant stated that there was a litigation pending between him and Gurbhag Singh and a compromise dated 13.12.2008 was effected between the parties and accused Jarnail Singh in order to discharge his legal liability, issued the cheques in question as per that compromise. Compromise dated 13.12.2008 is Ex.CW1/K upon the case file. In this compromise, it is clearly mentioned that the compromise was effected with regard to case No.146. Now the question arises what is case No.146? Complainant side placed on record Mark-E i.e. copy of FIR No.146 dated 08.10.2008 involving Sections 419, 420, 465, 467, 468, 471 and 120-B. So, according to complainant himself, as per Ex.CW1/K, it was agreed that matter regarding FIR No.146 shall be compounded. Now the question arises, if the accused issued the cheques in this compromise, whether the same was issued to discharge the legally enforceable debt or liability or not? To this court, it cannot be said that as per compromise dated 13.12.2008, accused issued the cheques in question to discharge the legally enforceable debt or liability. In FIR No.146, sections involved were 465, 467, 471, IPC which are non-compoundable. As per the authority titled as J. Daniel Vs. State of Kerala & Ano. (Supra) if the cheques is issued for compounding a non-compoundable offence, liability arising is not a legally enforceable debt or liability. As per the authority, an agreement opposed to law or forbidden by law is not enforceable. It is specifically held that any liability or debt arising out of a contract or promise, which is unlawful or not legally enforceable, would not constitute an offence under Section 138 of the Act. So, by applying this authority, it is clear that the accused issued the cheques to discharge the liability, which is not enforceable and that is why Section 138 of the Act is not made out.

15. For the sake of arguments, even if it is presumed that the accused initially issued the cheques as per compromise, even then on the facts of the case, no offence under Section 138 of the N.I. Act is made out. As per Ex.CW1/K the purpose of issuing the cheques by accused Jarnail Singh is that earlier criminal litigation regarding FIR No.146 would be over. Ex.D2 is the order of the Hon’ble High Court dated 26.08.2010 passed in the petition under Section 482 Cr.P.C. for quashing the FIR No.146 dated 08.10.2008 filed by Gurbhag Singh against accused Gurdev Singh. This document has been admitted by CW1 complainant Guydev Singh during his cross-examination. Vide this order, Hon’ble High Cour held that counsel for complainant Gurdev Singh submitted that there was no compromise between the parties and after considering this statement petition for quashing the FIR was dismissed. CW1 complainant Gurdev Singh during cross-examination also admitted the fact that compromise did not fructify. So, in these circumstances, authority titled as Lalit Kumar Sharma and Ano. Vs. State of U.P. & Anr. (Supra) is directly applicable. The cheques in question was issued in terms of the compromise. The cheque in question did not create a new liability. As the compromise did not fructify, the same cannot be said that cheque was issued towards payment of debt or liability. On the same analogy, Hon’ble Supreme Court of India in the authority titled as Lali