SADASIVAN Vs. SATHEESAN

JUDGEMENT

(1.) It is a case wherein criminal prosecution was initiated alleging offence under Sec. 138 of the Negotiable Instruments Act. But the trial court acquitted the accused on the reason that there is some difference in the nature of consideration covered by the cheque in question. While in the box, the complainant had advanced a different version that the cheque was issued in connection with purchase of certain articles as against the alleged borrowal advanced in the complaint. It is on that reason, an acquittal was passed. In fact, the order of acquittal suffers a material draw back. The entire scheme of Chapter XVII constituting Sec. 138 to 148 of N.I.Act would show that prime importance has to be given to the fact that whether the cheque was drawn by a person in discharge of a liability or debt either in part or in whole. The expression "any amount of money" incorporated under Sec. 138 of the N.I.Act stands for the amount for which the cheque had been drawn in discharge of a liability or debt either in whole or in part. Necessarily, the pleading raised in the complaint must be regarding the mandate to be complied with under Sec. 138 of the N.I.Act and not at all necessary to plead the details of original transaction or the nature of liability or debt on which the cheque was issued. The provision does not mandate the incorporation of details of original transaction or even the nature of liability or debt to which the cheque was issued. Hence, it is not at all necessary to plead the nature of such liability or debt in the complaint in order to set the criminal law in motion for the prosecution of the deemed offence under Sec. 138 of the N.I.Act. It is also not a mandate to prove any existing liability or debt for which a cheque was issued so as to extend the criminal liability under Sec. 138 of the N.I.Act. All these factors are incidental to the main issue whether the cheque was issued in discharge of a liability or debt either in whole or in part and it may have relevance in proving the due execution of the cheque and discharge of initial liability lies on the complainant. But, when the execution of the cheque otherwise proved or admitted, no further burden can be cast upon the complainant to prove the existence of liability or debt on which the cheque was issued. In short, it is not necessary to plead and prove the original transaction or the existence of either liability or debt in which the cheque was issued, when the execution of cheque is otherwise proved or admitted. But, at the same time, in proof of due execution of the cheque, the original transaction, liability or debt in which the cheque was issued may assume relevance for discharging the initial burden lies on the complainant to prove the due execution of cheque. When the initial liability is discharged, both the complainant and the accused will stand governed by both the Ss. 118 and 139 of the Negotiable Instruments Act on compliance of the mandate under Sec. 138 of the Act. The corollary is that on discharge of the initial burden to prove the due execution of the cheque in question or when the execution is admitted, no further burden can be cast upon the complainant either to prove the consideration or any other factor which can be drawn based on the presumption under Sec. 139 of the Act on compliance of the mandate under Sec. 138 of the Act and under Sec. 118 of the Act. Then it is upon the accused to rebut the presumption, for which the accused can rely on the absence of consideration to the cheque in question, the non-existence of original transaction and the non- existence of any liability or debt, for which the cheque in question was issued.

(2.) The Apex Court had the occasion to consider regarding the pleading to be raised in a complaint alleging offence under Sec. 138 of the Negotiable Instruments Act in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd. (AIR 2002 SC 182) and laid down the law that "there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial".

(3.) Mens rea, the indivisible part of criminal offence, in fact, had taken away from the ambit of offence under Sec. 138 of the N.I.Act., being it a deemed offence statutorily created. It was observed by the Apex Court in Modi Cements Ltd. v. Kuchin Kumar Nandi [AIR 1998 SC 1057 = (1998) 3 SCC 249] that "the principle of strict liability has been introduced to encourage greater vigilance, to prevent usual callous attitude of drawers of cheques in discharge of debt or liability. In Sec. 138, the element of mens rea has been excluded in the larger public interest to curb the instances of dishonouring of cheques and to lend greater credibility to the commercial transactions which are vital for trade, business and industry in general and for international business transactions in particular. Sec. 138 of the Negotiable Instruments Act, 1881 excludes mens rea by creating strict liability and this is explicit from the words 'such person shall be deemed to have committed an offence."