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TMI Blog2022 (9) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate, Manapparai. 3. The respondent/complainant has filed a private complaint under Section 200 Cr.P.C. against the petitioner for the offences under Sections 138 r/w 142 of Negotiable Instruments Act. 4. The case of the respondent is that both the petitioner and the respondent are close family friends, that the petitioner has taken a loan of Rs.3,36,000/- on 05.01.2019 from the respondent to meet out his family urgent expenses and to clear the sundry debts agreeing to repay the same within two months, that when the loan was demanded, the petitioner has issued a cheque bearing No.000109 drawn on Karur Vysya Bank, Manapparai Branch, dated 05.04.2019 for a sum of Rs.3,36,000/-, that the respondent has presented the cheque for collection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the petitioner and the respondent in August 2018, tenancy could not be continued and the petitioner had to shift his institute to another premises bearing Door No.277, Manickam Towers, Dindigul Main Road, Manapparai, that the petitioner at the time of vacating the said premises on 07.09.2018 had to pay a final rental arrears to the tune of Rs.32,331/- by means of a cheque bearing No.000135 dated 07.09.2018, that the petitioner requested the respondent to return the post-dated cheque bearing No.000109, that the respondent alleged that the cheque has been misplaced and gave it in writing with an undertaking in the letter head of his Nursing home dated 07.09.2018 to the effect that the cheque bearing No.000109 would be traced out and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also produced the written undertaking allegedly given by the respondent. 8. But the learned counsel for the respondent would submit that they are specifically disputing the undertaking document alleged to have been executed by the respondent. 9. As already pointed out, the respondent has canvassed a case that the petitioner has borrowed a sum of Rs.3,36,000/- and towards repayment of the said loan, he issued the cheque in dispute. 10. But the petitioner has specifically denied and disputed the case putforth by the respondent and he canvassed a case that the cheque in dispute was issued by post-dating the same towards additional advance agreed to be paid in case if the tenancy is extended. 11. According to the respondent, the cheque in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the supply of power was acted upon and power was supplied to by the second respondent and consumed by the company. .... 25. The explanation to Section 138 of the NI Act provides that 'debt or any other liability' means a legally enforceable debt or other liability. The proviso to Section 138 stipulates that the cheque must be presented to the bank within a period of six months from the date on which it is drawn or within its period of validity. Therefore, a cheque given as a gift and not for the satisfaction of a debt or other liability, would not attract the penal consequences of the provision in the event of its being returned for insufficiency of funds. Aiyar's Judicial Dictionary defines debt as follows: "Debt is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of 'debt'. However, if the sum payable depends on a contingent event, then it takes the color of a debt only after the contingency has occurred. Therefore, in the present case, a debt was incurred after the second respondent began supply of power for which payment was not made because of the non-acceptance of the LCs'. The issue to be determined is whether Section 138 only covers a situation where there is an outstanding debt at the time of the drawing of the cheque or includes drawing of a cheque for a debt that is incurred before the cheque is encashed. 26. The object of the NI Act is to enhance the acceptability of cheques and inculcate faith in the efficiency of negotiable instruments for transaction of busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f meeting the outstanding dues." 14. Considering the above, it is clear that the post-dated cheque issued after it has been covered and the cheque issued towards security are very much covered under Section 138 of Negotiable Instruments Act and the issues as to whether the cheque was issued as post-dated one or whether the cheque was issued as security are the matter of defence and as such, the disputed question cannot be resolved in the proceedings under Section 482 Cr.P.C. 15. Even assuming for arguments sake that the case putforth by the respondent is absurd or improbable even then, since the same touches upon the facts of the case, the same cannot be gone into at this stage as they are the matters which are required to be established ..... X X X X Extracts X X X X X X X X Extracts X X X X
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