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TMI Blog2018 (8) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Sri. Satyanarayan Ganesh Bhat had borrowed a loan from the complainant - Bank. He failed to repay the said loan amount and hence, in order to recover the said loan amount, the officials of the Bank went to the house of the accused and at that time, the accused issued the aforesaid cheque, but the same came to be dishonoured for the reason stated above. The complainant issued a notice calling upon the accused to pay the cheque amount. The accused, though received the notice, failed to issue any reply thereto and hence, the complainant sought action against the accused under Section 138 of N.I. Act. 4. The Manager of the complainant -Bank was examined as PW.1 and through him, the complainant produced in evidence the original cheque - Ex.P1, memo issued by the Bank - Ex.P2, letter given by the accused - Ex.P3, copy of the notice - Ex.P4, postal acknowledgement- Ex.P5, authorization letter - Ex.P6, application for loan given by the father of the accused - Ex.P7, loan documents - Ex.P8 to Ex.P.12. 5. In rebuttal, the accused examined himself as DW.1 and marked in evidence the mutation entry - Ex.D1. He put forth a plea that the cheque in question was obtained by the Bank officials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel would contend that the section does not lay down that the cheque should have been drawn towards the discharge of debt or other liability only of the drawer. As long as the debt is in existence and the cheque in question is issued in repayment of the said debt, the ingredients of section 138 of N.I. Act squarely get attracted and therefore, the reasoning assigned by the trial Court that the cheque in question was not issued in discharge of the legal debt is patently wrong and contrary to the provisions of section 138 of the N.I. Act. Hence, he seeks to set-aside the impugned judgment and to convict the accused for the offence under section 138 of N.I. Act. 11. I have bestowed my careful thought to the contentions urged by the learned counsel for the complainant/appellant and have carefully scrutinized the oral and documentary evidence on record. 12. In the light of the contentions urged by the parties, the point that arises for consideration in this appeal is:- "Whether the accused could be held liable for the consequences of dishonour of the cheque when the same was issued by him in discharge of the debt due by his father?" 13. In order to answer this question, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him under force and duress and secondly, it is contended that he did not owe any debt or liability to the complainant. According to the version of the complainant, the father of the complainant borrowed the alleged loan from the complainant. Therefore, the complainant did not have any transaction with the accused and in the said circumstance, the accused was not obligated to issue any cheque to the complainant in discharge of the alleged debt or liability and hence he is not liable to answer the claim made by the complainant. Both these contentions in my view are factually and legally untenable. 16. Insofar as, the first contention urged by the respondent/accused is concerned, suffice it to note that there is nothing on record to indicate that the complainant obtained the said cheque from the respondent/accused under force or duress. On the other hand, the accused himself has admitted in the course of his evidence that the bank officials had come to his house for recovery of the loan amount due by his father and threatened to seize all the movables and under that pretext, he was made to sign the cheque. There is nothing on record to show that the respondent/accused has taken any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co-related 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 words 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 ..... for this reason, the explanation to Section 138 of N.I. Act defines the expression 'debt' or 'other liability' as a legally enforceable debt or 'other liability'. Further, the presumption under Section 139 of N.I. Act provides that unless the contrary is proved, the holder of a cheque received the cheque for the discharge in whole or in part of 'any debt' or 'other liability'. Therefore, 'any debt' and 'other liability' would also cover the liability of another person as well. 22. The Section does not require the complainant to specifically aver in the complaint that the cheque in question was issued by the accused in discharge of 'any debt' or 'other liability'. Accused having admitted the issuance of the cheque, and the same having been drawn in the name of the complainant, the burden of proving that there was no existing debt or liability shifts on the drawer/accused. By drawing the instrument in the name of the complainant, the accused has impliedly entered into an agreement or promise to discharge the debt of his father which is a valid consideration for the accused to issue the subject cheque. Therefore, viewed from any angle, I do not have any hesitation to hold that, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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