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TMI Blog2018 (8) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... ent/accused has taken any action against the bank officials for return of the said cheque on the ground that the said cheque was taken by the bank officials under force and duress as contended by him. Even when the complainant issued a notice to him demanding repayment of the cheque amount, the accused did not even bother to reply to the said notice, making it evident that the contentions urged by the respondent/accused is only an after-thought and is calculated to set up a defence to avoid the liability for the dishonor of the said cheque. The conduct of the accused clearly indicate that the said cheque was issued by him to avert the seizure of the movables and other property of his father. Going by the very stand taken by the accused, it stands established that the accused issued the cheque to avert seizure of movable and immovable properties of his father for recovery of the debt due by him. It is not in dispute that, on the date of issuance of the cheque by the accused, a legally enforceable debt was due by his father. It is in discharge of this debt, the accused issued the subject cheque and thereby averted the sale or confiscation of movable and immovable properties of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when presented for encashment, came to be dishonoured for insufficient funds. 3. The case of the complainant is that the father of the accused Sri. Satyanarayan Ganesh Bhat had borrowed a loan from the complainant Bank. He failed to repay the said loan amount and hence, in order to recover the said loan amount, the officials of the Bank went to the house of the accused and at that time, the accused issued the aforesaid cheque, but the same came to be dishonoured for the reason stated above. The complainant issued a notice calling upon the accused to pay the cheque amount. The accused, though received the notice, failed to issue any reply thereto and hence, the complainant sought action against the accused under Section 138 of N.I. Act. 4. The Manager of the complainant Bank was examined as PW.1 and through him, the complainant produced in evidence the original cheque - Ex.P1, memo issued by the Bank - Ex.P2, letter given by the accused - Ex.P3, copy of the notice Ex.P4, postal acknowledgement Ex.P5, authorization letter Ex.P6, application for loan given by the father of the accused Ex.P7, loan documents Ex.P8 to Ex.P.12. 5. In rebuttal, the accused examined hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge of the debt due and payable by his father, he is answerable for the charges under section 138 of N.I. Act. Referring to section 138 of N.I. Act, learned counsel would contend that the section does not lay down that the cheque should have been drawn towards the discharge of debt or other liability only of the drawer. As long as the debt is in existence and the cheque in question is issued in repayment of the said debt, the ingredients of section 138 of N.I. Act squarely get attracted and therefore, the reasoning assigned by the trial Court that the cheque in question was not issued in discharge of the legal debt is patently wrong and contrary to the provisions of section 138 of the N.I. Act. Hence, he seeks to set-aside the impugned judgment and to convict the accused for the offence under section 138 of N.I. Act. 11. I have bestowed my careful thought to the contentions urged by the learned counsel for the complainant/appellant and have carefully scrutinized the oral and documentary evidence on record. 12. In the light of the contentions urged by the parties, the point that arises for consideration in this appeal is:- Whether the accused could be held liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y debt or liability. 15. In the instant case, in order to avoid his liability, the accused has taken up two fold contentions. Firstly, it is contended that the cheque in question was issued by him under force and duress and secondly, it is contended that he did not owe any debt or liability to the complainant. According to the version of the complainant, the father of the complainant borrowed the alleged loan from the complainant. Therefore, the complainant did not have any transaction with the accused and in the said circumstance, the accused was not obligated to issue any cheque to the complainant in discharge of the alleged debt or liability and hence he is not liable to answer the claim made by the complainant. Both these contentions in my view are factually and legally untenable. 16. Insofar as, the first contention urged by the respondent/accused is concerned, suffice it to note that there is nothing on record to indicate that the complainant obtained the said cheque from the respondent/accused under force or duress. On the other hand, the accused himself has admitted in the course of his evidence that the bank officials had come to his house for recovery of the loan am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt in respect of which the respondent No.1 was liable to issue the said cheque. The High Court having accepted the plea quashed the proceedings on the reasoning that the issuance of the cheque cannot be co-related for the purpose of discharging any debt or liability and as such, the complaint under Section 138 of N.I. Act cannot be maintainable. However, on appeal, the Hon ble Supreme Court in para 10 of the aforesaid judgment has held as under: 10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words Where any cheque . The above-noted three words are of extreme significance, in particular, by reason of the user of the word any - the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to include every debt or liability for the discharge of which the cheque is issued by the drawer. 21. Section 138 of the N.I. Act does not debar a person from taking up the liability of another person. It is for this reason, the explanation to Section 138 of N.I. Act defines the expression debt or other liability as a legally enforceable debt or other liability . Further, the presumption under Section 139 of N.I. Act provides that unless the contrary is proved, the holder of a cheque received the cheque for the discharge in whole or in part of any debt or other liability . Therefore, any debt and other liability would also cover the liability of another person as well. 22. The Section does not require the complainant to specifically aver in the complaint that the cheque in question was issued by the accused in discharge of any debt or other liability . Accused having admitted the issuance of the cheque, and the same having been drawn in the name of the complainant, the burden of proving that there was no existing debt or liability shifts on the drawer/accused. By drawing the instrument in the name of the complainant, the accused has impliedly entered into an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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