KOMALAM Vs. MOHANKUMAR

JUDGEMENT

(1.) This revision is by the accused in a case taken cognizance of on the basis of a private complaint alleging offences punishable under Section 138 of the Negotiable Instruments Act, The trial coat convicted the accused and sentenced her to undergo rigourous imprisonment, for six months and to pay fine of Rs. 60,000/-. The court of session allowed her appeal on the question of sentence, modified it and sentenced her to pay a fine of Rs. 60,000/-, in default of which, to undergo simple imprisonment for two months. Out of the fine amount collected, an amount of Rs. 45,000/- was to be paid to the complainant as compensation.

(2.) The allegation against the petitioner was that she and her husband informed the complainant that employment opportunity is available in the Cochin Port Trust that could be obtained for her, for which purpose, an amount of Rs. 45,000/- has to be paid to the accused. Believing those words, the complainant parted with that amount and paid it to the accused and her husband by borrowing it from the relatives of the complainant. No job was secured as agreed The complainant wanted return of money. With the intervention of mediators, a cheque dated 31-10-1992 for an amount of Rs. 45,000/- was issued by the accused in favour of the complainant. On presentation, that cheque was returned with the endorsement "payment stopped by the drawer" and that on enquiry, it was revealed that the accused did not have sufficient funds in her account to honour the cheque. Though the accused received the statutory notice, a reply was sent stating only that the cover contained only a blank paper. Alleging non-payment of the fund covered by the cheque, a complaint was instituted. The Additional Chief Judicial Magistrate took cognizance of the sworn statement of the complainant on record. At trial, the complainant gave evidence as PW1, PW2 spoke of the entrust of money by the complainant to the accused. PW3, an officer of the bank, spoke in relation to the cheque and its dishonour and also that from Ext.P5, the balance outstandings in the account of the accused was only Rs. 50/- and that the accused had written to the bank stopping payment of ExtPl cheque.

(3.) The short issue that ultimately raises for decision is as to whether the issuance of Ext.Pl cheque by the accused could be treated as one in discharge of a liability. The argument advanced on her behalf is that there was no debt or liability that the accused owe to the complainant and debt if any, was that of her husband, DW4. It needs to be noticed that Section 138 of the N.I. Act comes into play in relation to cheques issued by a person to another person for the discharge, in whole or in part, of any debt or other liability. The explanation at the foot of that section provides that "debt or other liability" means a legally enforceable debt or other liability. Neither does that explanation, nor the charging provision in Section 138 confines its operation to be only in relation to cases where cheques are issued in discharge of debt or Liability of the person issuing the cheque. The law provides for discharge of debt by a person, even if it is a debt of another. Such transactions, where one discharges debt of another,, is an instance of discharge of debt or other liability. If 'A' discharges a legally enforceable debt or other liability of 'B', by making "a payment to 'C, then, if that is done by 'A' issuing a cheque to 'C', it becomes a cheque issued in discharge of the legally enforceable debt or other liability of 'B' and is therefore, debt or other liability for the purpose of Section 138 of the N.I. Act. So much so, the arguments on behalf of the accused that she issued the cheque for discharge of liability of her husband DW4 would not save her from the penal provision of Section 138 of the N.I. Act