TMI Blog2018 (8) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... n 138 of N.I. Act - The contra finding recorded by the trial Court being opposed to the provisions of Section 138 of the N.I. Act and the material on record cannot be sustained. It would be just and appropriate to sentence the accused to pay the fine amounting to twice the amount of the cheque i.e. ₹ 2,72,468/-. Appeal allowed. - Criminal Appeal No. 2552 Of 2010 (A) - - - Dated:- 20-3-2018 - MR. JOHN MICHAEL CUNHA J. Appellant By: Sri. S.B. Hebballi, Adv. For Sri. V.R. Datar, Adv. Respondent By: Sri. M.C. Hukkeri And Sri. P.N. Hosamane, Advs.) JUDGMENT This appeal is directed against the judgment and order dated 06.03.2009 passed by the II Additional J.M.F.C., Bagalkot in C.C. No.2056/2006, whereby the learned Magistrate has acquitted the respondent/accused of the offences punishable under Sections 138 and 142 of the Negotiable Instruments Act (hereinafter called as N.I. Act ). 2. The facts leading to the appeal are as follows: The complainant, Kanoria Industries Limited is a public limited company. It initiated action against the respondent/accused alleging that the respondent acknowledged the debt of one Satyappa Vantagodi of Jamkhandi i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally enforceable debt and not as a collateral security and if the complainant failed to prove the same, the accused is entitled for acquittal. 8. Learned counsel for the appellant has relied on the decision rendered by the Madras High Court in the case of P.R. Shankar Rao Vs. Joseph and Joseph Regis Kalingarayar reported in 2001 CLJ 2392. 9. I have anxiously bestowed my thought to the submissions made at the bar and have carefully examined the records. 10. The accused does not dispute the fact that the cheque in question bears his signature. The only contention urged by the accused in the course of the trial is that the said cheque was handed over by him to the complainant in some other transaction and the same has been misused by the complainant to lay a false claim against him. Whereas, the complainant has taken up a plea right from the beginning that the cheque in question was issued by the accused acknowledging the debt due by one Satyappa Vantigodi of Jamakhandi. In his evidence, the Law Officer who has been examined as PW.1 has deposed that the company had supplied cement to the aforesaid Satyappa Vantigodi and towards the part payment of the amount due by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hought. On the other hand, on analysing the oral and documentary evidence produced by the complainant and the accused, I am of the clear view that the cheque in question was issued by the accused in discharge of the debt due by Satyappa Vantigodi. But the question that arise for consideration is: whether the accused could be held liable for the consequences of dishonour of the cheque issued by him in discharge of the debt due by a third party? 12. Learned counsel for the accused/respondent has emphatically submitted that in order to render the accused liable for conviction under the provisions of Section 138 of N.I. Act, the dishonored cheque should have been issued by the accused in discharge of the legally enforceable debt or liability due and payable by him and not the debt or liability contracted by any third party. In other words, it is the submission of the learned counsel that in the instant case the complainant himself having come forward with the plea that the cheque in question was issued in respect of the debt or liability due by the aforesaid Satyappa Vantigodi, with whom the accused has no relationship whatsoever, the accused cannot be made liable to answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated for the purpose of discharging any debt or liability and as such, the complaint under Section 138 of N.I. Act cannot be maintainable. However, on appeal, the Hon ble Supreme Court in para 10 of the aforesaid judgment has held as under: 10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words Where any cheque . The above-noted three words are of extreme significance, in particular, by reason of the user of the word any - the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three word s at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. 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. This aspect of the matter has not been apprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
