TMI Blog2018 (3) TMI 1907X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque was issued by the accused without any lawful consideration. Section 138 of the N.I. Act does not debar a person from taking up the liability of another person. It is 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. There are no hesitation to hold that, in the instant case, the complainant has proved that the cheque in question was issued by the accused in discharge of legally enforceable debt. The said cheque is proved to have been dishonoured for insufficiency of funds. The complainant has complied with all the requirements prescribed under Section 138 of N.I. Act thereby rendering the accused liable for conviction under the said provision of law - accused having admitted the issuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.W. 1 and took up a plea that he had no transaction whatsoever with the complainant and he did not purchase the alleged household articles from the complainant at any point of time and did not issue the cheque in question to the complainant in discharge of the alleged debt or liability. 6. The Trial Court considered the above evidence and was of the opinion that the complainant failed to produce the credit bill or any other document in proof of the sale of electronic items to the accused and therefore, by drawing adverse inference against the complainant, came to the conclusion that the complainant failed to establish subsisting debt in respect of which the cheque was issued by the accused and consequently acquitted the accused of the alleged charge under Section 138 of N.I. Act. 7. Feeling aggrieved by the impugned judgment, the appellant/complainant has preferred this appeal. 8. I have heard the learned counsel for the appellant Shri A.R. Hegde, and learned counsel for the respondent Shri C.V. Angadi. 9. Learned counsel for the appellant at the outset would submit that the accused has admitted the issuance of the cheque. In the course of his evidence, he has stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence in proof of his transaction with the accused and therefore, he cannot now turn around and put forth a plea that the cheque in question was issued in respect of other liability . The complainant cannot make out a new case. The averments made in the complaint are required to be strictly construed. The complainant has to stand or fall on the basis of the case set up by him. The complainant having based his case on the specific allegation that the cheque in question was issued in discharge of the debt due by the accused, failure on the part of the complainant to prove the transaction between him and the accused would necessarily entail dismissal of the complaint. Therefore, the impugned judgment cannot be faulted with. Further, the learned counsel would submit that the accused is a Teacher by profession. The allegation made in the complaint are that he purchased the articles for the purpose of business. Merely because his father and brothers are carrying on the said business, the liability incurred by the firm run by his father and brothers cannot be fastened on the accused. Further, he contended that the above plea is urged by the appellant for the first time before this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused in the name of the complainant. According to the accused, he issued the aforesaid cheque on behalf of his father as security. 16. The question whether the accused could be held liable for the consequences of the dishonour of cheque issued by him towards discharge of the debt due by his father need not detain us in view of the authoritative pronouncement of the Hon'ble Supreme Court in the case of I.C.D.S. Limited Vs. Beena Shabeer and Another reported in (2002) 6 SCC 426. 17. In the said case, the husband of respondent No. 1 namely accused No. 1 entered into a hire-purchase agreement with the appellant company (ICDS Limited) for the purpose of purchase of Maruti Car on hire-purchase basis. Respondent No. 1, his wife stood as guarantor in respect of the hire-purchase facilities being made available to her husband. In respect of the aforesaid transaction respondent No. 1 issued a cheque. The said cheque was dishonored. The appellant issued a statutory notice calling upon the respondent No. 1 to pay the amount. Respondent No. 1 failed to comply with the demand, hence, action was initiated under Section 138 of N.I. Act. The respondent moved a petition under Section 482 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same business is continued by his father. Further, in his cross-examination, D.W. 1 has categorically stated that, The above evidence clearly goes to show that the accused and his family members are carrying on the business of sale of TV, grinders and furniture through Manikanta agencies. This evidence leads to the inevitable inference that the cheque in question was issued by the accused to satisfy the debt or liability due by the Manikanta Agencies in respect of the purchase of TVs grinders and furniture from the complainant. This transaction therefore, brings the case within the expression 'other liability'. In this context, it is also relevant to refer to the suggestion made by the learned counsel for the accused to PW1 in the course of his cross-examination suggesting that the above cheque is issued by the accused in respect of the transaction carried on by Venkataraman Naik - the father of the accused. This evidence in my view is sufficient to hold that the cheque in question was issued by the accused in discharge of other liability. Therefore, it cannot be said that the cheque was issued by the accused without any lawful consideration. 19. In order to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orceable debt. The said cheque is proved to have been dishonoured for insufficiency of funds. The complainant has complied with all the requirements prescribed under Section 138 of N.I. Act thereby rendering the accused liable for conviction under the said provision of law. 22. The findings recorded by the Court below, in my view, are contrary to Section 138 of N.I. Act. The accused having admitted the issuance of cheque and the complainant having proved the existence of a legally recoverable debt and also having established the circumstances in which the accused issued the said cheque, in my view, the presumption engrafted under Section 139 of the N.I. Act comes into play. The accused has failed to rebut the said presumption with cogent and acceptable evidence. Therefore, on both these counts, the findings recorded by the Court below cannot be sustained. For the reasons discussed above, the impugned judgment is liable to be set aside. Accordingly, the appeal is allowed. The impugned judgment dated 24.11.2009 passed by the I Additional JMFC, Sirsi in C.C. No. 923/2002 is set aside. The accused is convicted for the offence punishable under Section 138 of N.I. Act. Having re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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