2002 (4) TMI 1000 - HC - Income Tax

Summary

Issues Involved:
1. Whether the difference in the amount mentioned in the cheque vis-a-vis the amount of consideration that allegedly passed under Ext. P1 is incapable of conferring cause of action to the complainant?
2. Whether Ext. P1 cheque was issued in discharge of a legal liability?
3. Whether the first respondent has committed the offence under Section 138 of the Negotiable Instruments Act?
4. Reliefs.

Issue-wise Detailed Analysis:

1. Difference in the Amount Mentioned in the Cheque:
The court examined whether a complaint under Section 138 of the Negotiable Instruments Act can be maintained if the cheque amount is larger than the actual debt due on the date of the transaction. It was admitted by PW1 and in the complaint that only Rs. 80,000/- was given to the accused on 15.1.1995, whereas Ext. P1 cheque dated 15.1.1997 was for Rs. 1 lakh. The court clarified that Section 138 allows for a cheque to be drawn for the discharge, in whole or in part, of any debt or other liability. The court found that the difference in amount was not significant as the cheque was post-dated to cover the principal amount and the interest accrued over two years. Thus, the cheque amount being larger than the original debt did not invalidate the cause of action under Section 138.

2. Issuance of Ext. P1 Cheque in Discharge of Legal Liability:
The accused contended that there was no adequate evidence to show that the cheque was issued in discharge of a subsisting legal liability. The defence argued that there was no transaction between the parties and presented varying stands, including an alleged agreement (Ext. D1) which was found to be forged. The court noted the presumption under Section 139 of the Negotiable Instruments Act that the holder of a cheque received it for the discharge of any debt or other liability, unless proven otherwise. The court found the accused's varying stands and the forgery of Ext. D1 undermined their credibility. The presumption in favor of the complainant remained undischarged through appropriate rebuttal evidence.

3. Commission of Offence under Section 138:
To establish the offence under Section 138, the complainant needed to prove the dishonoured cheque was issued in discharge of legal liability and that the drawer failed to pay the amount despite notice. The court found that the issuance of notice and failure to pay were proven. The reason for dishonour was "account closed," which did not exempt the accused from liability under Section 138. The court referenced Japahari v. Priya, which held that closing an account to avoid cheque payment does not negate liability under Section 138. The court concluded that the accused failed to ensure sufficient funds were available to honor the cheque, establishing all ingredients of the offence under Section 138.

4. Reliefs:
The court reversed the impugned judgment and convicted the accused of the offence under Section 138 of the Negotiable Instruments Act. The court remanded the matter to the trial court to hear the accused on the aspect of sentencing and to pass an appropriate sentence, including the question of compensation to the complainant. The case was remanded for this limited purpose.

Conclusion:
The appeal was disposed of with the conviction of the accused under Section 138 of the Negotiable Instruments Act, and the matter was remanded to the trial court for sentencing.