TMI Blog1999 (4) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to do, or avoid doing, to an indirect or circuitous manner that it has prohibited. Hence, when the cheque is returned by a bank with an endorsement account closed, it would amount to returning the cheque unpaid because the amount of money standing to the credit of that account is insufficient to honour the cheque as envisaged in Section 138 of the Act. Appeal dismissed. - CRL.A. 481 OF 1999 - - - Dated:- 26-4-1999 - K.T. THOMS AND M.B.SHAH, JJ. JUDGMENT Leave granted. NEPC Micon Limited, Appellant No. 1 and its directors approached the High Court for quashing the proceedings in Case No. C-494 of 1997 pending on the file of the Metropolitan Magistrate, Calcutta, initiated by Magma Leasing Limited, Respondent-Company under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). It was alleged by the complainant that in discharge of its existing liability, the appellant-Company had given five cheques dated 1st January, 1997 for various amounts totalling to Rs. 58,25,980/- drawn on Canara Bank, Broadway Branch, Madras, in favour of the Respondent-Company. Those cheques were duly tendered to the bankers, Punjab National Bank, Calcutta f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aniyar vs. Swati Girish Bhide Ors. wherein the Courts have taken the view that Section 138 would not be attracted in a case where cheque is dishonoured on the ground of closure of account by the drawer of the cheque in the particular bank on which he has drawn the cheque as Section 138 is a penal provision and should be construed strictly. He has also pointed out the decisions in Shivendra Samsguiri vs. M/s. Adrnio Anr. [1996 Cr. L.J. 1816 (Bengal)], Veeraraghavan Vs. Lalita Kr. [1995 Cr. L. J. 1882 (Madras)], M/s. Dada Silk Mills Vs. Indian Overseas Bank Banking Co. [1994 Cr. L J 2874 (Gujarat)], M/s. G. M. Mittal Stainless Steels Ltd. Vs. M/s. Nagarjuna Investment Trust Ltd. [1995 (4) Crimes 379 (Andhra Pradesh)], Japahari Vs. Priya [1994 (1) Crimes 3798 (Kerala)] and Rakesh Porwal vs. Varayan Joglekar [1993 Cr. L.J.688] wherein a contrary view has been taken and the Courts have held that Section 138 would be applicable in a case where cheque is dishonoured on the ground that account by the drawer is closed. For deciding the contention raised by the learned counsel for the appellant, it would be necessary to refer to the relevant Sections 138 and 140 which are as under: - 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a situation, such person (drawer of cheque) shall be deemed to have committed an offence. Further, the offence will be complete only when the conditions in the proviso (a), (b) and (c) are complied with. Hence, the question is, in a case where cheque is returned by the bank unpaid on the ground that the account is closed, would it mean that cheque is returned as unpaid on the ground that the amount of money standing to the credit of that account is insufficient to honour the cheque. In our view, the answer would obviously be in the affirmative because cheque is dishonoured as the amount of money standing to the credit of that account was nil at the relevant time apart from it being closed. Closure of the account would be an eventuality after the entire amount in the account is withdrawn. It means that there was no amount in the credit of that account on the relevant date when the cheque was presented for honouring the same. The expression the amount of money standing to the credit of that account is insufficient to honour the cheque is a genus of which the expression that account being closed is specie. After issuing the cheque drawn on an account maintained, a person, if he close ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, which is to suppress a mischief, the Court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will advance the remedy and suppress the mischief. Further, while interpreting, the statutory provision rule dealing with penalty under the Drugs and Cosmetics Act, 1940 and the rules in the case of Swantraj and Others Vs. State of Maharashtra 1975(3) S.C.C. 322, this Court held that every legislation is a social document and judicial construction seeks to decipher the statutory mission, language permitting, making the one from the rule I Heydons case of suppressing the evil and advancing the remedy. Court held that what must tilt the balance is the purpose of the statute, its potential frustration and judicial avoidance of the mischief by a construction whereby the means of licensing meet the ends of ensuring pure and potent remedies for the people. Court observed that this liberty with language is sanctified by great judges and textbooks. Maxwell instructs as in these words: There is no doubt that the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tilizers (India) Pvt. Ltd. Vs. Employees State Insurance Corporation AIR (1988) S.C. 79, this Court referred to often quoted passage from the decision in the case of Seaford Court Estates ltd. Vs. Asher (1949) 2 All ER 155 wherein Lord Denning, L.J. observed: The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if the Acts of Parliament wee drafted with divine pre-science and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court held that Section 138 of the Act gets attracted only when the cheque is dishonoured. In view of the aforesaid discussion we are of the opinion that even though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. As stated above, Section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. The above interpretation would be in accordance with the principle of interpretation quoted above brush away the cobweb varnish, and show the transactions in their true light (Wilmot C. J.) or (by Maxwell) to carry out effectively the breach of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or circuitous manner that it has prohibited. Hence, when the cheque is returned by a bank with an endorsement account closed, it would amount to returning the cheque unpaid because the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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