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TMI Blog2006 (1) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... him a cheque dated December 13, 1996 drawn on Punjab National Bank, Fozal in the amount of rupees one lakh. The cheque bounced, when the petitioner presented it to the Bank, with the endorsement that the account maintained by the accused with the Bank had been closed. The evidence led by the petitioner shows that the cheque book, from which the cheque in question was drawn, was issued in favour of the accused. This account was maintained by the accused in the name of "Jawala Furniture Works Association" and was closed by the accused on September 16, 1994, i.e., prior to the issuance of the cheque to the petitioner. 4. Learned trial Magistrate dismissed the complaint holding that in order to invoke Section 138 of the Act, the maintenance of account with the Bank on the date of issuance of the cheque by the accused was necessary so as to bring the dishonour of the cheque within the scope of Section 138 of the Act. 5. Another ground for the dismissal of the complaint and acquittal of the accused was that the account in question was maintained in the name of "Jawala Furniture Works Association" and therefore, the cheque must have been issued on behalf of the &quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt or other liability. 9. The provisions contained in this Chapter are primarily designed to provide an additional criminal remedy, over and above the civil remedies available to the payee or holder in due course of a cheque. This chapter protects the interests of a payee or holder in due course of a dishonoured cheque. The object of the chapter is to enhance the acceptability of the cheque in settlement of financial liabilities by making the drawer liable for penalties. It is noticed that for establishing the requirements of Section 138, there is no burden on the part of the complainant to prove before a Court the entire details of the transactions resulting in issuance of the cheque. As observed by the Apex Court in Kusum Ingots and Alloys Limited v. Pennar Peterson Securities Ltd. 2000CriLJ1464 , the object of bringing Section 138 on statute is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Looking to the object of incorporating Chapter-VIII in the Act, the expression, "on account maintained by him" used in Section 138 of the Act, noticed above, cannot be interpreted to give it an artifici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and advancing the remedy. The Court held that what must tilt the balance is the purpose of the statute, its potential frustration and judicial avoidance of the mischief by a construction whereby the means of licensing meet the ends of ensuring pure and potent remedies for the people. The Court observed that this liberty with language is sanctified by great Judges and textbooks. Maxwell instructs us in these words : There is no doubt that the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief. To carry out effectively the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous, manner that which it has prohibited or enjoined: quando aliquid prohibetur, prohibetur et omne pe quod devenitur ad illud. This manner of construction has two aspects. One is that the courts, mindful of the mischief rule, will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net. The other is that the statute may be applied to the substance rather than the mere for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que is dishonoured on the ground that the accused is closed then it would come within the sweep of Section 138 of the Act but if the cheque is issued on a closed account, then such an act of a dishonest person would not fall within the mischief of Section 138 of the Act. It is true that NEPC case does not specifically deal with the cheques issued on accounts closed prior to the date of issuance of the cheque. Nevertheless, this case does not indicate that such cases are intended to be taken out of the sweep Section 138 of the Act. In my opinion the expression "an account maintained by him" necessarily includes an account which was maintained by him, i.e. the account which has been closed as also the account which is still maintained by him". 13. The Supreme Court in N.A. Issac v. Jeemon P. Abraham and Anr. 2005 (1) CCC 690 (SC), interpreted Section 138 of the Act and observed that contention that this provision will not be applicable when the cheque is issued from an already closed account cannot be upheld as such an interpretation would defeat the object of insertion of the provision in the Act. Their Lordships observed : "Section 138 does not call for such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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