Partial payment before the filing of the complaint can absolve the drawer of a cheque from liability under Section 138 of the Negotiable Instruments Act.

Judgment

1. Being aggrieved by the judgment dated 28.11.2008 passed by XVIth Additional Sessions Judge, (Fast Track), Indore in Cr.A. No. 786/07 whereby the judgment dated 19.9.2007 passed by JMFC, Indore in Criminal Case No. 33244/07 whereby the petitioners were convicted for an offence punishable under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as an “Act”) with fine of Rs. 30,000/- each and in case of default petitioner No. 2 was directed to be convicted for a period of three months SI, the present petition has been filed.

2. Short facts of the case are that a private complaint was filed by the respondent No. 1 under Section 138 of the Act on 24.6.2002 wherein it was alleged that petitioner No. 1 is a private company incorporated and registered under the Companies Act and petitioner No. 2 and Mrs. Anne Reena George are its Managing Director and Director. It was alleged that petitioner No. 1 Company is indulged in the business of construction of house and complexes. It was alleged that on 18.9.2001 on the request of petitioners respondent supplied for Steel and M.S. Round to the petitioner Company vide bill dated 18.9.2001. The goods were transported through Shree Couriers, 827 Lohamandi, Indore on 18.9.2001. The goods were duly received and acknowledged by the petitioners vide receipt dated 18.9.2001 itself. It was alleged that in lieu of the prise the cheque was issued by the petitioners on 9.11.2001 for Rs. 90,000/-. The said cheque was signed by the petitioner No. 2 as Managing Director of the petitioner No. 1 company. Upon presentation the said cheque was returned with a remark ‘funds insufficient’. It was alleged that notice of demand was sent which was duly served but in spite of that cheque amount was not paid. It was alleged that petitioners have committed an offence which is punishable under Section 138 of the Act. It was prayed that after taking cognizance petitioners be convicted. Upon the complaint cognizance was taken by the learned trial Court. After issuance of notice and also after framing of charge and recording of evidence petitioners were convicted as stated above, against which an appeal was filed which was dismissed and conviction was maintained, hence this revision petition.

3. Learned Counsel for the petitioners argued at length and submits that it is not disputed that the goods were received by the petitioners on 18.9.2001 and the cheque was also issued on 9.11.2001, but the amount of Rs. 30,000/- was paid by the petitioners before issuance of notice dated 13.5.2002 and further amount of Rs. 30,000/- was paid by the petitioners prior to the filing of the complaint. It is submitted that thus the petitioners has paid a sum of Rs. 60,000/- and cognizance of this fact was taken by the learned Courts below in the judgment. It is submitted that in the facts and circumstances of the case, since the petitioners were not indebted for a sum of Rs. 90,000/- on the date of issuance of cheque, therefore, the learned Courts below committed error in convicting the petitioners under Section 138 of the Act. Learned Counsel placed reliance on a decision of Madras High Court in the matter of Angu Parameshwari Textiles v. Shri Rajam, 2001 DCR 648, wherein Madras High Court has held that the cheque drawn should be towards the discharge of either the whole debt or part of the liability. It was further held that if the cheque is more than the amount due on the day when the cheque was presented, therefore, it cannot be said that the cheque was towards discharge of either the whole or part of any debt or the liability. Further reliance is placed on a decision of Bombay High Court in the matter of Smt. Taraben Jamnadas v. Narendra Kumar Khetsi, AIR 2008 (NOC) 133 (Bom.), wherein the dishonour of cheque issued was for a sum of Rs. 17,47,050/- while bank statement shows payment of Rs. 10,14,000/-, Bombay High Court held that dishonoured cheque of Rs. 17,47,050/- could not be treated to be cheque