9911796707
TMI Blog2010 (7) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the date on undated cheque as "4-6-2008". The cheque was presented to the drawee bank through the banker of the Respondent No. 1. Cheque was returned unpaid on the ground that the drawer had stopped the payment. Therefore, notice was issued by the Respondent to the contractor as well as it's managing partner for the payment of the cheque amount. In spite of notice, payment was not made. Therefore, the Respondent No. 1 filed complaint under Section 138 of the Negotiable Instruments Act, in the Court of Metropolitan Magistrate 44th Court, Andheri. Process was issued against the accused, who is the Petitioner before this Court. Petitioner/ accused challenged the issuance of process by filing revision application No. 789/2009 before the Sessions Court, Gr. Bombay. By the impugned order dated 8th June, 2009, the learned Additional Sessions Judge rejected the revision application. Hence, this petition. 3. At the outset it may be stated that before the revisional Court, Petitioner had taken several grounds challenging the issuance of process. However, during the arguments before this Court, the learned Counsel for the Petitioner restricted the challenge only to one po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not issued for discharge in whole or in part of any debt or other liability and, therefore, presumption under Section 139 could not arise in favour of the complainant. Revision application filed by the complainant was rejected by this High Court holding that when the cheque was issued only as a deposit and not in discharge of any debt or liability, offence under Section 138 is not made out. 5. In M.S. Narayana Menon alias Mani v. State of Kerala and Anr. (2006) 6 SCC 39 : AIR 2006 SC 3366), accused and the complainant were brokers working in the stock exchange and the complainant was to enter into certain transactions on behalf of the accused. The cheque was issued for an amount of ₹ 2,95,033/- by the accused in favour of the complainant. On presentation, the cheque was dishonoured. After notice also the payment was not made. In the case under Section 138 plea of the accused was that the complainant was in dire need of financial assistance and the said cheque was issued so as to enable him to tide over his financial difficulties and not in discharge of any debt or liability payable to the complainant. During the trial, it was revealed that there was discrepancy of more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to perform so many works and in respect of some works, his rates were higher and in respect of some other, rates were lower than the other bidders. He was also advanced certain amount for carrying out certain works from time to time. Contractor had completed works in which higher rates were given to him but he ignored to carry out those works where the rates were less and thereafter he ignored to complete those particular works resulting into the disputes between the parties. Admittedly, the disputes had occurred in the year 2006 and the contractor filed a suit against the Respondent in the year 2006. Not only this, admittedly, matter was also referred to arbitrator in respect of said disputes. The learned Counsel for the Respondents pointed out that undated cheque was lying with the Respondent since 28-1-2005. However, for the first time a date "4-6-2008" was put on him and then cheque was presented for encashment, which was returned unpaid with endorsement "payment was stopped". It shows that date was put on the cheque by the Respondents long after disputes had arisen between the parties. Proviso (a) to Section 138 requires that the cheque should be presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment. 11. The issue as regards the co-extensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the statute depicts the intent of the lawmakers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. "Any cheque" and "other liability" are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque was issued as a security deposit and not towards the discharge of any debt or other liability, case under Section 138 is not made out. When the complaint itself does not make out criminal case to issue the process, to force the accused to undergo trial would be clear misuse of the process of the Court and this should not be allowed. The Additional Sessions Judge while rejecting the revision application dealt with the liability of the, contractor on the basis of terms of the contract and the cheque. The learned Counsel or the Respondent also contended that the matter was referred to arbitrator and arbitrator also held that the contractor is liable to pay on the basis of that cheque. As far as civil liability of the contractor/Petitioner is concerned, it is not necessary to look into the same in present matter. Suit was filed in the year 2006 and the arbitrator was also appointed in 2008, therefore, civil liability of the parties against each other can be looked into the said litigation or arbitration proceedings. In the present matter, we have only to see whether the offence under Section 138 of the Negotiable Instruments Act is made out or not. The learned Revisional Court di ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
