TMI Blog2018 (7) TMI 2230X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint that the cheques were issued by way of security. However, rest of the averments as made in the notice, find place as they are in the complaint. The question, in such circumstances, is whether the dishonour of the cheque can give rise to an offence under section 138 of the Act. Coming to the present case, on the respondent's own saying, the subject cheque (along with other cheque, in respect of which the respondent chose not to file any complaint) was undated and in all probability, was passed somewhere in the year 2006, at the inception of the contract and was agreed to be presented for encashment after 7 1/2 years, which the respondent resultantly did by putting the date 2-4-2015. The subject cheque is shown to be for an amount of ₹ 11,25,000/-. Thus, on the basis of the averments in the notice as well as the complaint itself, it cannot be accepted, prima facie, that there was a liability of ₹ 11,25,000/- against the petitioner towards the respondent at the time when the cheque was signed and passed on to the respondent. In fact the averments would show that there were two undated cheques passed by the respondent - Admittedly, there is not even an aver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arnataka and hence, the petitioner accepted the proposal of the respondent. Further, according to the respondent, the petitioner agreed to pay ₹ 3 Lakhs per month to the respondent for a period of 7 years for hiring his trucks i.e. from 1-1-2006 to 30-6-2013. It is the specific case made out that the petitioner issued two undated cheques to the respondent bearing Nos. 079540 and 079539 drawn on her account in Central Bank of India, Panaji Branch. It was further contended that the agreement between the parties, (namely about the respondent providing his trucks to the petitioner and petitioner paying an amount of ₹ 3 Lakhs to the respondent), was oral and the petitioner had requested the respondent that first cheque should be presented for realisation after 7 1/2 years and the second cheque was to be presented two months thereafter. Eventually, the petitioner (sic : respondent) presented the cheque bearing No. 079539 dated 2-4-2015 for realisation on 25-5-2015, which cheque got dishonoured on account of the fact that the account of the petitioner was already closed somewhere in the year 2010. This led the respondent to issue a statutory notice to the petitioner on 23- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Indus Airways Pvt. Ltd. and others vs. Magnum Aviation Pvt. Ltd. and another, 2014 MhLJ Online (Cri) (S.C.) 59 : 2014 (12) SCC 539 and the decision of this Court in Joseph Vilangadan vs. Phenomenal Health Care Services Ltd. and Anr., 2010 (3) MhLJ. (Cri.) 628 : 2011 (1) Bom. C.R. (Cri.) 810. He submitted that although in the notice dated 23-6-2015, the respondent claimed that the cheques were by way of security, the respondent has cleverly not mentioned the said fact in the complaint. It is submitted that in any case, unless and until the respondent is able to show that on the date on which the cheques were signed and issued, there was a liability on the petitioner to pay the amount as mentioned in the cheque, no offence under section 138 of the Act, can be said to be made out on account of dishonour of the cheque. 8. On the contrary, Shri Gosavi, the learned Counsel for the respondent has supported the impugned order. It is submitted that the learned Sessions Judge has rightly held that all these aspects, as claimed on behalf of the petitioner, have to be gone into at the trial and the order issuing process, cannot be quashed on any such ground. Shri Gosavi has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, insofar as the second cheque is concerned. The respondent presented the cheque bearing No. 079539 dated 2-4-2015 on 25-5-2015, which got dishonoured as the concerned account was closed sometime in the year 2010. In the notice, there was a specific averment made that the two undated cheques were issued by way of security. The respondent did not claim in the complaint that the cheques were issued by way of security. However, rest of the averments as made in the notice, find place as they are in the complaint. The question, in such circumstances, is whether the dishonour of the cheque can give rise to an offence under section 138 of the Act. 11. The Supreme Court in Indus Airways Pvt. Ltd. (supra) was concerned with a case where the post dated cheques were issued by the appellant/purchaser, as an advance payment in respect of purchase orders, in which case, the Hon'ble Supreme Court found that the cheques could not be said to have been issued in discharge of a legally enforceable debt or liability. This is what is held in para 13 of the judgment: 13. The explanation appended to section 138 explains the meaning of the expression 'debt or other liability' for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a total liability of ₹ 22,50,000/- (together with two cheques) against the petitioner, to which the answer was none. Admittedly, there is not even an averment that any such amount was due and outstanding on or about the date, on which the two cheques were issued by the petitioner. 14. In the case of Joseph Vilangadan (supra), this Court had found that there was no debt or liability existing when the undated cheques were passed in favour of the respondent and the cheques were lying with the respondent since 2005 and were presented for encashment only in the year 2008. In such circumstances, this Court had set aside the order issuing process against the petitioner. 15. In my considered view, the ratio as laid down by this Court in the case of Joseph Vilangadan (supra) and Hon'ble Supreme Court in the case of Indus Airways Pvt. Ltd. (supra), would apply with equal force to the facts as obtaining in the present case. 16. Reliance placed on behalf of the respondent on the decision of the Hon'ble Supreme Court in the case of Sampelly Satyanarayan Rao (supra), to my mind, is misplaced. In that case, the post dated cheques, which were described as security, were iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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