Sunday, 19 July 2020

Whether the court can hold surety liable for the dishonour of cheque if the complainant has failed to prove that accused had issued cheque toward liability of principal debtor?

Complainant in cross-examination further disclosed that he received the cheque Ex. 15 from Srushti Financer. However, there is no material on record nor it is the case of the complainant that any liability of Rs. 14,50,000 was existing against Srushti Financer and same is accepted by the accused and issued cheque Ex. 15 for discharging liability of Srushti Financer. No any document is placed on record by complainant to show any relation of the accused in respect of any loan transaction between the complainant and Srushti Financer. It is also not case of the complainant that accused accepted the liability of Srushti Financer and issued the cheque. No any document creating the liability of the accused is produced on record. If the cheque is drawn by the accused without accepting liability of another in writing, it does not attract Section 138 of N.I.Act. In this regard, reliance can be placed on the case of Hiten Sagar & Anr. v. IMC Ltd. & Anr. MANU/MH/0276/2001 : 2001 (3) CCC 571 (Bom.) : 2001 Cri. LJ 4311 wherein this Court has held that:

If the cheque drawn for discharge of liability of another person without creating any document, it does not come under section 138 of N.I.Act.

6. So, in view of the above reason, it is clear that on the date of cheque Ex. 15, no any evidence liability was existing against the accused and no any evidence that liability on the date of cheque was existing against the Srushti Financer and same was accepted by the accused and hence he issued the cheque.

IN THE HIGH COURT OF BOMBAY

Criminal Application No. 3661 of 2007

Decided On: 24.04.2008

 Nandkishore Mehra  Vs.  Sudhir Transport Ltd. and Ors.

Hon'ble Judges/Coram:
V.K. Tahilramani, J.

Citation: MANU/MH/1616/2008


1. The applicant original complainant has preferred this application for leave to appeal against the judgment and order dated 22.08.2007 passed by the learned Metropolitan Magistrate, 13th Court, Dadar, Mumbai in C.C. No. 893/ SS/2004. By the said judgment and order, the learned Magistrate acquitted the respondent accused of the offence under Section 138 of Negotiable Instruments Act.

2. I have heard the learned Advocate for the applicant and the learned APP for the State. I have perused the judgment and order as well as the record in the present case.

3. The case of the complainant is that the cheque in question was issued in respect of loan of Rs. 14,50,000. No documents have been placed by the complainant on record to show payment of loan to the accused. It is seen that there is no oral or documentary evidence in respect of payment of loan to any of the accused.

4. Complainant has stated in his examination in chief that in the month of December, 2000 against loan of Rs. 14,50,000, accused No. 2 executed one letter dated 12.12.2000 in the form of promissory Note and promised to pay bearer thereof the aforesaid amount on due date. The said letter is at Exhibit-14. Perusal of Exhibit 14 reveals that same is not addressed to the complainant nor does this letter show that against which liability, the accused promised to pay the amount of Rs. 14,50,000. Moreover, the complainant in his cross-examination has admitted that the said letter is not directly received by him from the accused. From the cross-examination of the complainant, it is seen that the letter Ex. 14 was received by him along with cheque Ex. 15 on 07.06.2001 from Srushti Financer. It is clear that the letter Ex. 14 is not received by the complainant in connection with any liability in respect of both the accused persons. It is pertinent to note that complainant has not stated anywhere that any loan was paid to the accused persons and against such loan, promissory Note Ex. 14 was issued.

5. Complainant in cross-examination further disclosed that he received the cheque Ex. 15 from Srushti Financer. However, there is no material on record nor it is the case of the complainant that any liability of Rs. 14,50,000 was existing against Srushti Financer and same is accepted by the accused and issued cheque Ex. 15 for discharging liability of Srushti Financer. No any document is placed on record by complainant to show any relation of the accused in respect of any loan transaction between the complainant and Srushti Financer. It is also not case of the complainant that accused accepted the liability of Srushti Financer and issued the cheque. No any document creating the liability of the accused is produced on record. If the cheque is drawn by the accused without accepting liability of another in writing, it does not attract Section 138 of N.I.Act. In this regard, reliance can be placed on the case of Hiten Sagar & Anr. v. IMC Ltd. & Anr. MANU/MH/0276/2001 : 2001 (3) CCC 571 (Bom.) : 2001 Cri. LJ 4311 wherein this Court has held that:

If the cheque drawn for discharge of liability of another person without creating any document, it does not come under section 138 of N.I.Act.

6. So, in view of the above reason, it is clear that on the date of cheque Ex. 15, no any evidence liability was existing against the accused and no any evidence that liability on the date of cheque was existing against the Srushti Financer and same was accepted by the accused and hence he issued the cheque.

7. So far as validity of cheque Ex. 15 is concerned, it is admitted by the complainant that cheque Ex.15 was self drawn cheque received by him from Srushti Financer. He further in cross-examination has disclosed that word "self" from the column of payee of cheque Ex. 15 is struck by him and he wrote his own name. So cheque is already altered by the complainant by putting his name after stricking of the word "self" from the column of payee. It is also admitted that for changing the name of payee, no consent of the accused was obtained. In the cross-examination, complainant has disclosed that he struck of word "self and put his name on the instructions of T.K.Agarwal given on telephone. When the cheque is altered admittedly the accused was not present and who is T.K.Agarwal, under whose instruction, the alteration is made by the complainant, is not known. There is no evidence that what is the relation of T.K.Agarwal with accused No. 1. It is also not brought on record, that what is the status of T.K.Agarwal and what position he was holding vis-a-vis accused No. 1. T.K.Agarwal is not the party to cheque Ex. 15 and therefore, his instruction cannot be called as consent for alteration. Thus this is a case of material alteration. The said material alteration would make the cheque void as per Section 87 of the Negotiable Instruments Act and hence, it does not fasten any criminal liability upon the accused.

8. In view of the above facts, the learned Magistrate acquitted the respondents of the offence under Section 138 of N.I.Act. Perusal of the evidence, I find that the view taken by the learned Magistrate is a reasonable and possible view.

9. It is well settled that if the view of acquittal could have been reasonably arrived at then the mere circumstance that the appellate Court would have taken a different view, would be no ground to interfere. In this connection, there is no dearth of authorities but to eschew prolixity, I am referring to only two of them i.e. Khedu Mohton v. State of Bihar MANU/SC/0139/1970 : AIR 1971 SC 66 : 1970(2) SCC 450 and C.Anthony v. K.G.Raghavan Nair MANU/SC/0968/2002 : 2002 ACJ 481 (S.C.) : 2003(1) Civil Court Cases 1 (S.C.) : 2003(1) Criminal Court Cases 90 (S.C.) : 2003(1) SCC 1: AIR 2003 SC 182. In the case of C.Anthony, the Supreme Court has observed that unless the findings of the trial Court are perverse or contrary to the material on record, the High Court cannot in appeal substitute its findings, merely because another contrary opinion was possible on the basis of material on record. As stated earlier, the view taken by the learned Magistrate is a reasonable and possible view, hence, no interference is called for.

10. In this view of the matter, application for leave to appeal is rejected.


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