w w w . L a w y e r S e r v i c e s . i n



    Decided On, 25 February 1999

    At, High Court of Karnataka


    For the Appearing Parties: H.L. Sridhara Murthy, K. Lakshminarayan Rao, Advocates.

Judgment Text

( 1 ) THE respondent herein filed c. C. No. 14096, 14097, 14098 and 14099/ 96 on the file of the 6th Addl. C. M. M. Bangalore, against the petitioner herein alleging that the petitioner being the P. A. holder of his mother Venkatamma ; that as she was due in a sum of Rs. 1,30,000/- in that connection he had issued four cheques of the dates mentioned therein. Those cheques were presented by the respondent to the Bank but the same were dishonoured. Thereafter, he got issued notices both through R. P. A. D. and also under Certificate of posting. It is alleged that though the notices were served on him, the petitioner had failed to pay the amount within the stipulated time. Therefore, four complaints were filed. The learned Magistrate after taking cognizance of the offence, issued notice to the petitioner who appeared before the Court and filed an application under Section 202, 203 Cr. P. C. stating that no case is made out as against the petitioner, therefore, all the complainants are liable to be dismissed. The learned magistrate has heard both sides and passed the order on 17. 8. 1996 allowing the application holding that there is no prima- facie case against the accused for the offences punishable under Section 138 of n.. Act in all the four cases and that therefore all the four complaints were dismissed. Being aggrieved by that order, the respondent filed Criminal revision petition Nos. 52, 55, 56, 57/1997 on the file of the learned 23rd Addl. City Civil and Sessions Judge, Bangalore. The learned Sessions Judge after having heard both sides allowed the petitions restoring c. C. Nos. 14097, 14096, 14098 and 14099/97 and directed the Court below to proceed to dispose of the case in accordance with law. Being aggrieved by that common order, the petitioner accused has preferred these revision petitions.

( 2 ) AT the outset, the learned Counsel for the petitioner vehemently argued that the notice was not served on him as contemplated under Section 138 (c) of the n.. Act and that therefore, the complaint was rightly rejected by the trial Court. This contention cannot be accepted at this stage. As rightly pointed out by the learned counsel for the respondent, the petitioner himself has admitted in a complaint filed by him in PCR. 495/94 wherein, this respondent is the 7th accused in that case, the receipt of the notice issued by the respondent pertaining to these four cases. Under that circumstance, the contention of the petitioner's Counsel that wrong address was mentioned in respect of the house number and the presumption that the letter sent under certificate of posting is served on this petitioner is not available to the respondent need not be gone into at this stage.

( 3 ) THE learned Counsel for the petitioner further submitted that postal endorsement in the RPAD is 5. 11. 1994, but the complaint came to be filed on 17. 11. 94 therefore it is clear that the complaint came to be filed within 15 days and thus the complaint is premature. This argument cannot be accepted at this stage in view of the fact that the petitioner has stated in the complaint filed by him on 31. 10. 1994 that he had received the notice from the respondent. That being the case, he must have received the notice earlier to 31. 10. 1994. Therefore, the complaint filed on 17. 11. 1994 was beyond 15 days which satisfied the requirement of law and for that reason, this argument of the learned counsel for the petitioner is liable to be rejected.

( 4 ) THE learned Counsel for the petitioner further contended that the mother of the petitioner had borrowed the loan and on her behalf he issued the cheque in favour of the respondent as the P. A. holder and that therefore there is no legal enforceable debt as far as this petitioner is concerned. At this stage, it may be mentioned that the fact he is the P. A. holder of his mother and his mother was due certain amount to the respondent as mentioned in the complaint is not in dispute. The petitioner has issued cheques drawn on the Bank mentioned in the complaint where he has got the account undertaking to repay the amount due from his mother to the respondent. This representation was believed by the respondent who received the cheques towards the legally enforceable debt due from the mother of the respondent. Under those circumstances, it is relevant to refer to the decision of the madras High Court wherein it is held as follows:-"a reading of Section 138 of the N.. Act, would indicate that the debt or liability towards which the cheque is issued, should be a legally enforceable debt or liability and that this would have reference to the nature of the debt or liability and not to the person against whom the debt or liability could be enforced. This is clear by the use of the words "any debt or liability" which would include a cheque drawn by one person towards a legally enforceable debt or liability of another person. The significant omission of the words "debt or other liability of that person" after the words "any debt or liability" would indicate the intention of the parliament. "

( 5 ) IN this case, the liability of the debt was legally enforceable against the mother of the petitioner and since he had undertaken to pay the amount through the cheques, he becomes liable and that amount is legally enforceable debt as far as this petitioner is concerned. Therefore, at this stage, prima-facie there is a case made out as against this petitioner that the cheques were issued towards legally enforceable debt. Hence, this arguments of the learned counsel for the petitioner is also liable to be rejected.

( 6 ) THE learned Counsel for the petitioner has sought to argue by relying on Section 230 of the Contract Act. That cannot be considered at this stage, as the petitioner had issued the cheques and those cheques were dishonoured when presented to the Bank which is punishable under section 138 of N.. Act which is a criminal liability. The petitioner admittedly issued cheques in question representing that he has issued the cheques in repayment of the due and legally enforceable debt as against his mother and in addition to that he claims to be her P. A. holder which representation was believed by the respondent and accepted by it. According to the learned counsel for the respondent, the petitioner issued those cheques with dishonest intention to cheat the respondent and that he is criminally liable. This Court is not going deep into the question of civil liability and also the contention of the respondent that he had the dishonest intention at this stage. However, it is admitted fact that the respondent had filed a suit in O. S. 6804/94 as against venkatamma wherein the petitioner represents her as G. P. A. holder. In that case, it may be the defence available to the petitioner. But as far as the criminal liability is concerned, when once a person issues a cheque and if that cheque is dishonoured by the Bank when presented

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, the drawer of the cheque fails to pay the amount after the receipt of the statutory notice within the stipulated time; is liable to be prosecuted under that Act. Therefore, the learned Sessions Judge has rightly held that the dismissal order passed by the Court below is contrary to the provisions of law. ( 7 ) THE further contention of the petitioner that without arraigning venkatamma, the case cannot be proceeded with, also cannot be accepted at this stage in view of the fact that the petitioner himself had undertaken the liability to repay the amount on behalf of his mother venkatamma and also as P. A. holder. Therefore, this argument is also unsustainable. ( 8 ) FOR the foregoing reasons, all these revision petitions are dismissed.