Rita Thomas vs Smt. Thirupallamma

N. Venugopala Gowda J. - Unsuccessful complainant is the appellant. The respondent having been acquitted by the learned Magistrate for the offence punishable under Section 138 of the Negotiable Instruments Act, 18 81, this appeal was filed.

The dishonoured cheque, marked as Ex. P-1, was returned by the Bank with endorsements, as at Exs. P-2 and P-3, on the ground " not drawn on us After the cheque was returned for the aforesaid reason, demand notice vide Ex. P-4 was sent to the respondent and the payment having not been made, private complaint under Section 200, Cr. P.G, alleging commission of offence under Section 138 of N.I. Act was filed against the respondent. With reference to the sworn statement and the marked documents, cognizance of the offence under Section 138 of N.I. Act was taken and C.C. No. 27057/2012 was registered by the XIV Additional Chief Metropolitan Magistrate, Bengaluru. In response to the summons, the accused having appeared, denied the accusation. Hence, trial was conducted, wherein, the complainant got herself examined as PW.l and marked 6 documents, as Exs. P-1 to P-6. The accused was examined under Section 313, Cr. P.C. and it is a case of denial. The accused got herself examined as DW. I and marked a document, as Ex. D-1. With reference to the said materials and the rival contentions, the aforesaid judgment was passed on 02.06.2014.

Learned advocate for the appellant did not dispute the fact that the cheque, marked as Ex. P-1, was dishonoured by the Bank on two occasions and on both occasions, the endorsements were issued vide Exs. P-2 and P-3 to the effect "not drawn on us". One of the reasons which has made the learned Magistrate to acquit the accused is that the ingredients of the offence under Section 138 of the N.I. Act as having not been made out.

In Jugesh Sehgal v. Shamsher Singh Cogi, (2009) 14 SCC 683, noticing the object for which Section 138 of the N.I. Act was enacted, to punish unscrupulous drawers of cheques who purport to discharge their liability by issuing a cheque and have no intention of really doing so, yet to fasten a criminal liability under the said provision, necessary ingredients of the Section was held as required to be satisfied. To constitute an offence under Section 128 of the Act, the following ingredients were held as required to be fulfilled:

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;

(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;

(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;

(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;

(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.

It was held that being cumulative, it is only when all the aforementioned ingredients are satisfied, then the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.

In the instant case, it has not been shown that the accused as having drawn Ex. P-1, on an account maintained by her in the Bank for payment of the amount of money, shown therein, to the complainant i.e., from out of the account so maintained. The basic ingredient of the offence referred to SI. No. (i) (supra), having not been proved, there cannot be any prosecution of the respondent for the offence under Section 138 of the N.I. Act. Since the necessary ingredient has not been made out, there cannot be a criminal liability in terms of the provision under Section 138 of the Act, against the respondent.

In the said view of the matter, there is no merit in this appeal. Consequently, special leave sought by filing LA. No.2/2015 cannot be granted.

Hence, without going into the question of delay in filing this appeal, the appeal is rejected.

However, it is made clear that the impugned judgment would not stand in the way of the appellant in taking action, in accordance with law, for other offence committed, if any.