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TMI Blog2014 (4) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... '). In respect of these purchase orders, the purchasers also issued two post-dated cheques dated 15.03.2007 for a sum of Rs.34,57,164/- and 20.03.2007 for a sum of Rs.15,91,820/-. The said cheques were issued by way of advance payment for the purchase orders. One of the terms and conditions of the contract was that the entire payment would be given to the supplier in advance. The supplier says that the advance payment was made by the purchasers as it had to procure the parts from abroad. 4. These cheques got dishonoured when they were presented on the ground that the purchasers had stopped payment. 5. It is not in dispute that the supplier received letter dated 22.03.2007 from the purchasers cancelling the purchase orders and requesting the supplier to return both the cheques. 6. The supplier sent response to the letter dated 22.03.2007 on 23.03.2007 asking the purchasers as to when the supplier could collect the payment. Thereafter, on 12.04.2007, the supplier sent a notice to the purchasers and then filed a complaint against the purchasers under Section 138 of the N.I. Act before the Court of Additional Chief Metropolitan Magistrate, New Delhi. 7. On 22.05.2007, the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 12. The interpretation of the expression 'for discharge of any debt or other liability' occurring in Section 138 of the N.I. Act is significant and decisive of the matter. 13. The explanation appended to Section 138 explains the meaning of the expression 'debt or other liability' for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence under Section 138 of the Act. The explanation reads that for the purposes of this section, 'debt or other liability' means a legally enforceable debt or liability." 17. The Kerala High Court in Ullas Supply House, Represented by Managing Partner v. Ullas, Proprietor Bright Agencies and another; [2006 Cri. L.J. 4330 (Kerala)] had an occasion to consider Section 138 of the N.I. Act. In that case, the post-dated cheque was issued by the accused along with the order for supply of goods. The supply of goods was not made by the complainant. The accused first instructed the bank to stop payment against the cheque and then requested the complainant not to present the cheque as he had not supplied the goods. The cheque was dishonoured. The single Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions and to make a cheque as a reliable negotiable instrument and to see that the cheques of business transactions are not dishonoured. The purpose of Negotiable Instrument Act is to make an orderly statement of rules of law relating to negotiable instruments and to ensure that mercantile instruments should be equated with goods passing from one hand to other. The sole purpose of the Act would stand defeated if after placing orders and giving advance payments, the stop payments are issued and orders are cancelled on the ground of pricing of the goods as was done in this case." 19. The above reasoning of the Delhi High Court is clearly flawed inasmuch as it failed to keep in mind the fine distinction between civil liability and criminal liability under Section 138 of the N.I. Act. If at the time of entering into a contract, it is one of the conditions of the contract that the purchaser has to pay the amount in advance and there is breach of such condition then purchaser may have to make good the loss that might have occasioned to the seller but that does not create a criminal liability under Section 138. For a criminal liability to be made out under Section 138, there shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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