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2008 (5) TMI 696 - SC - Indian LawsOffence Punishable u/s 138 Negotiable Instruments Act - Dishonour of the cheques - forged and fabricated cheques - alteration by changing figure in digit - legally recoverable debt or not - High Court convicted the appellant - HELD THAT - We find that the learned Single Judge has not addressed himself on the legal question raised before him by the appellant that the criminal liability of the appellant under the provisions of Section 138 of the Act are attracted only on account of the dishonour of the cheques issued in discharge of liability or debt but not on account of issuance of security cheques. The learned Single Judge has also not given cogent satisfactory and convincing reasons for disbelieving and discarding the pre-charge evidence of the appellant corroborated by the evidence of the expert opinion in regard to the interpolation in and fabrication of the cheques by adding one more figure 0 to make 30, 000/- to 3, 00, 000/- and similarly adding one more figure 0 to make 40, 000/- to 4, 00, 000/-. In the backdrop of the facts of these cases we are of the opinion that the judgments and orders of the High Court cannot be sustained on the premise that the High Court has not addressed itself on the above-said two legal questions raised by the appellant and therefore the impugned judgments and orders dated 25.01.2007 and 19.02.2007 are set aside. The matters are remitted to the High Court to decide the appeals filed by the respondent against the appellant and criminal miscellaneous petitions seeking for quashing the first information reports registered against the respondent and his wife. Needless to say that any observation made by us in this judgment shall not be construed as an expression of opinion on the merits of the cases which shall be decided by the High Court on their own merits in accordance with law. Appeals shall stand disposed of.
Issues Involved:
1. Validity of cheques under Section 138 of the Negotiable Instruments Act. 2. Alleged forgery and material alteration of cheques. 3. Issuance of cheques as security versus discharge of liability. 4. Quashing of FIRs against the respondent and his wife. Issue-wise Detailed Analysis: 1. Validity of Cheques under Section 138 of the Negotiable Instruments Act: The appellant issued six cheques to the respondent, out of which five were dishonored due to 'Exceed Arrangement'. The respondent sent statutory notices under Section 138 of the Negotiable Instruments Act, 1881, which were not accepted by the appellant. Subsequently, the respondent filed five criminal complaints under Section 138 of the Act read with Section 420 of the IPC. The trial court acquitted the appellant, but the High Court convicted him under Section 138 of the Act. The Supreme Court noted that the High Court failed to address the legal argument that Section 138 applies only if cheques issued in discharge of liability or debt are dishonored, not security cheques. 2. Alleged Forgery and Material Alteration of Cheques: The appellant contended that the cheques were forged and fabricated by the respondent, alleging material alteration by adding zeros to the amounts. The trial court observed discrepancies in the cheques and referred them to a document expert, who confirmed the alterations. The High Court, however, dismissed the expert's opinion, stating that the cheques were filled in both figures and words, indicating the appellant's intent. The Supreme Court found that the High Court did not provide convincing reasons for dismissing the expert evidence and the appellant's pre-charge evidence. 3. Issuance of Cheques as Security Versus Discharge of Liability: The appellant argued that the cheques were issued as security, not in discharge of any liability or debt. The High Court did not address this legal question, which was crucial for determining the applicability of Section 138 of the Act. The Supreme Court emphasized the need for the High Court to consider whether the cheques were issued for security purposes or to discharge a liability. 4. Quashing of FIRs Against the Respondent and His Wife: The appellant had filed FIRs against the respondent and his wife alleging fraud and cheating. The High Court quashed these FIRs while convicting the appellant under Section 138 of the Act. The Supreme Court noted that the High Court's decision to quash the FIRs was based on its findings regarding the cheques' validity, which were not adequately addressed. Conclusion: The Supreme Court set aside the High Court's judgments and orders dated 25.01.2007 and 19.02.2007, remitting the matters back to the High Court for reconsideration. The High Court was directed to address the legal questions raised by the appellant, including the nature of the cheques (security vs. liability) and the allegations of forgery. The Supreme Court clarified that its observations should not influence the High Court's fresh consideration of the cases. The appeals were disposed of accordingly.
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