OMANAKUTTAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) An interesting novel question of general importance arises for consideration in this Criminal Revision Petition. Is a Magistrate justified in awarding rigorous imprisonment under Sec. 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act')- It is profitable to extract the said Section as such before analysing the above question:-

(2.) For answering the above mooted question, it may be necessary to trace the history behind Sec. 138 of the Act. The said provision was enacted by "The Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Act 66 of 1988) inserting a new Chapter, viz., Chapter XVII, comprising of Secs. 138 to 142 in the Negotiable Instruments Act, with effect from 1-4-1989. The said Chapter was introduced with a view to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the account or for the reason that it exceeds the arrangement made by the drawer, with adequate safeguards to prevent harassment of honest drawers. In short, dishonour of cheques under the abovementioned circumstances was criminalised by the said amendment.

(3.) Sec. 138 of the Act excludes mens rea taking away the hurdles under Sec. 420 of the Indian Penal Code. While fastening absolute liability, it is now well-settled by a catena of decisions of the Apex Court that the provision has to be construed strictly, since absolute liability offences entail conviction on the mere proof that the accused committed the act and it is not a defence even if the accused is entirely without fault and morally innocent. But is it in tune with the fundamental principles of justice that a person is punished with rigorous imprisonment for his poverty?