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TMI Blog2011 (5) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the reason insufficient funds . The amount involved in the cheques was not paid by the Respondent within the statutory period despite service of demand notice. Thus, Respondent had committed offence under Section 138 of the Act. 3. At the pre-summoning evidence Appellant examined Mr. Jitender Sharma as CW1. He tendered his evidence by way of affidavit. Trial Court took cognizance of offence and summoned the Respondent. Notice under Section 251 Code of Criminal Procedure was framed against him. He pleaded not guilty and claimed trial. During the trial, Shri Devender Kumar Magotra, Authorized Representative of Appellant, was examined as PW1. He filed his affidavit in his examination-in-chief, reiterating the averments made in the complaint. He has fully supported the Appellant's version. He proved the cheques in question as Ex. PW1/2 to PW1/4. Cheque returning memos have been proved as Ex. PW1/5 to PW1/7. Demand notice was proved as PW1/8. Postal receipts were proved as PW1/9 and PW1/10. This witness was cross-examined by the Respondent's counsel at length. 4. After Appellant concluded its evidence, statement of Respondent under Section 313 Code of Criminal Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by him is of no consequence. Respondent has admitted his signatures on the cheques. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Respondent has not denied his signatures on the cheques. Once he has admitted his signatures on the cheques he cannot escape his liability on the ground that the same has not been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him. As regards handing over of the cheques to the Appellant is concerned, same is not in dispute since Respondent has admitted that he had handed over the cheques to Shri Jitender Sharma, who happens to be Branch Manager of the Appellant at the relevant time. Cheques had been drawn in favour of J K Bank Ltd. A/c Akansha Machine Tools . This shows that cheques had been issued to discharge liability of the said firm. 7. Once issuance of the cheque h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) The payee or the holder in due course of the cheque, as 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 cheques 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 purpose of this section, debt or other liability means a legally enforceable debt or other liability. 10. The language employed in Section 138 of the Act makes it ample clear that this Section does not confine its operation to the cases where cheque had been issued by a person in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Any cheque and other liability are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. Any contra-interpretation would defeat the intent of the legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantor's liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus do not lend any assistance to the contentions raised by the Respondents. 12. In Komalam Gopi v. T.K. Mohankumar and Anr., wife had issued a cheque in favour of payee in discharge of liability of her husband. Plea taken by her that ingredients of offence under Section 138 of the Act were not attracted, since she had not issued the cheque in discharge of her liability, was rejected. It was held as under: 3. ...It needs to be noticed that Section 138 of the N.I. Act comes into play in relation to cheques issued by a person to another person for the discharge, in whole or in part, of any debt or other liability. The expla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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