HARENDRA RAMCHANDRA PATHAK Vs. RAJENDRA RATAN MHATRE

JUDGEMENT

(1.) This is an appeal impugning an order and judgment dated 21st November 2001 passed by the Judicial Magistrate First Class, First Court, Kalyan, acquitting respondent no.1 of offences punishable under Section 138 (Dishonour of cheque for insufficiency, etc., of funds in the account) of the Negotiable Instruments Act, 1881 (the said Act).

(2.) It is appellant's case that appellant and respondent no.1 had business relations. Complainant states that accused was liable to pay to complainant some amount of money on account of several transactions and after taking accounts, accused agreed to pay to complainant a sum of Rs.32 lakhs. Complainant states that accused issued a cheque for Rs.32 lakhs bearing no.522850 dated 3rd May 1999 drawn on Abhudaya Co-operative Bank Limited, Vashi branch. This cheque, when deposited, came to be dishonoured with the endorsement "refer to drawer". Appellant issued a notice dated 11th September 1999 through his advocate as required under Section 138 of the said Act. Despite receipt of notice, the amount was not paid and hence the complaint came to be filed. Respondent denied liability and claimed to be tried. Respondent came with a defence that the cheque does not bear his signature and in the statement recorded under Section 313 of the Code of Criminal Procedure, respondent has stated that he did not issue the cheque and nothing was payable to appellant. In the statement recorded under Section 313 of the Code of Criminal Procedure, respondent had denied that he issued any cheque for Rs.32 lakhs to appellant. In the cross examination of PW-1, it has been suggested by defence that accused used to leave blank cheques with complainant for business purposes signed by him. In order to establish the guilt of the accused, complainant gave evidence of himself as PW-1. Two other witnesses have deposed, who were Bank employees, to prove the cheque.

(3.) Under Section 138 of the said Act where any cheque drawn by a person on an account maintained by him is drawn in favour of another person for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, the said person shall be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both. Explanation to Section 138 provides "For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability". The key word is legally enforceable debt or other liability.