Mohana Pai Vs. Jabbar

Decided On : Jun-11-2004

Court : Kerala

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Appointment: [V.K. Bali, CH, P.R. Raman & S. Siri Jagan, JJ] Post of Pharmacist in Homeopathy Subordinate Service -  Special Rules for Kerala Homeopathy Subordinate Service Rules, 1999 introducing new qualifications  Vacancy arising subsequent to coming into force of the said special rules  Held, Vacancies have to be filled up only in accordance with Special Rules, 1999. Unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by Special Rules. State Government has the power to frame or amend the Special Rules with or without retrospective effect. Mohanan K.R. & anr vs Director of Homeopathy, Kerala Homeopathy Services, Trivandrum & ors. -  Reversal of the conviction is therefore bad; The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. P1 agreement admittedly entered into by the parties make it clear that the respondent was issuing the cheque to the appellant as security and the amount stipulated in the agreement would be paid within six months, and that in case of failure to pay the stipulated amount within six months, the appellant would be entitled to present the cheque in the bank.',
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			'judgement' => '<p style="text-align: justify;">K.A. Abdul Gafoor, J.</p><p style="text-align: justify;">1. Reversing the conviction ordered by the Judicial Magistrate of the First Class-II, Kochi, the learned II Additional Sessions Judge, Ernakulam acquitted the1st respondent. Therefore the appellant/complainant has come up with this appeal against the acquittal.</p><p style="text-align: justify;">2. The offence alleged are that punishable Under Section 138 of the Negotiable Instruments Act and Under Section 420 of the IPC. The subject matter was Ext.P2 cheque dated 5.5.1993 for an amount of Rs. 20,000/- issued by the accused/1st respondent. When the cheque was presented to the bank, it bounced. So the offence as alleged has been committed by the 1st respondent. Reversal of the conviction is therefore bad; the appellant submits.</p><p style="text-align: justify;">3. The finding of the learned Sessions Judge that Ext.P2 cheque was issued as a security and therefore does not attract Section 138, now cannot be accepted in the light of the decision of the Apex Court in I.C.D.S. Ltd. v. Beena Shabeer, 2002 (3) KLT 218. Even a cheque issued by the guarantor to ensure repayment of loan by the principal debtor was found, in that case, supported by due consideration and issued to discharge legally enforceable liability to attract the provision in Section 138. Moreover, there was Ext.P1 agreement between the parties with regard to the sale of the bus. The cheque in question was issued with the stipulation in the said agreement that the cheque was issued as a security for the payment of the amount assured in Ext.P1 agreement. It could have been encashed if the assured payment was not made after six months from the date of Ext.P1. Ext.P1 was dated 27.10.1992. Ext.P2 cheque was dated 5.5.93, after six months from Ext.P1 When presented, it was not cashed. Therefore, this was a cheque for an amount towards the liability incurred by the 1st respondent/ accused. So on merits also the learned II Additional Sessions Judge committed error to reverse the conviction, the counsel submits.</p><p style="text-align: justify;">4. The submission made by the counsel for the 1st respondent is that the amount has already been paid to the counsel appearing for the appellant in the Court below. In another proceedings, receipt has been produced before the Court below. Therefore, there was no liability. Moreover, Ext.P1 is earlier than Ext.P2 cheque which was issued for future payment. Therefore Ext.P2 which was made mention of in Ext.P1 did not represent any liability Wall. So, there is no reason to reverse the acquittal, the counsel for the respondent submits.</p><p style="text-align: justify;">5. The case relating to I.C.D.S. is one in respect of a cheque issued by a guarantor ensuring payment of a debt incurred by principal debtor in case of his default. Considering the word 'any debt or liability' appearing in Section 138, the Supreme Court held as follows:</p><p style="text-align: justify;">'The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words 'Where any cheque'. The above noted three words are of extreme significance, in particular, by reason of the user of the word 'any' the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any of debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment'.</p><p style="text-align: justify;">It has also been made clear that:</p><p style="text-align: justify;">'The language of the Statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act: 'Any cheque' and 'other liability' are the two key expressions which stands as clarifying the legislative intent So as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legislature'.</p><p style="text-align: justify;">This view was taken to reverse the findings of this Court. Necessarily, even if the cheque was drawn by the respondent on the date of Ext.P1, when the amount was not really due, at the proper time it could be presented before the bank and if bounced, provisions of Section 138 of the Act will apply.</p><p style="text-align: justify;">6. In this case, the cheque was presented after six months from 27.10.92, from the date of Ext.P1. Of course, Ext'.P2 cheque which has been entrusted by the appellant to the 1st respondent on 27.10.92 is seen dated 5.5.93. But Clause 3 and 4 in Ext.P1 agreement admittedly entered into by the parties make it clear that the respondent was issuing the cheque to the appellant as security and the amount stipulated in the agreement would be paid within six months, and that in case of failure to pay the stipulated amount within six months, the appellant would be entitled to present the cheque in the bank. That means, the 1st respondent had authorised the appellant to present it after six months in case there was default of payment of the amount mentioned in Ext.P1. In such circumstances, it was probable that the accused might have given even undated cheque or post dated cheque to the appellant to present it in the bank.</p><p style="text-align: justify;">7. Ext.P2 cheque was duly handed over representing that at that eventuality envisaged in Ext.P1, it .could be encashed. In such circumstances, it cannot be said that the cheque was issued representing security and hot liability. The cheque which had been issued as security was transformed itself into a cheque representing liability in terms of the agreement contained in Ext.P1 to which the 1st respondent was a party. Necessarily, the reversal of the conviction on that count cannot be sustained. Therefore it has to be found that the 1st respondent had committed offence punishable Under Section 138 of the Act.</p><p style="text-align: justify;">8. Of course, in doing so, the 1st respondent did not have a dishonest intention to attract Section 420 IPC. Therefore, the reversal of conviction under Section 420 by the learned II Additional Sessions Judge has to be upheld.</p><p style="text-align: justify;">9. In terms of the recent amendment introduced in Section 147 of the Act, every offence punishable under this Act shall be compoundable notwithstanding anything contained in the Criminal Procedure Code, 1973.</p><p style="text-align: justify;">10. In such circumstances, as it has been disclosed that the 1st respondent had paid the amount and that the appellant's counsel before the Court below had received the amount, it shall have to be taken by reason of the conduct of the parties that they have compounded the offence. Necessarily, though there is conviction, no sentence shall follows. The appeal is closed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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Appointment: [V.K. Bali, CH, P.R. Raman & S. Siri Jagan, JJ] Post of Pharmacist in Homeopathy Subordinate Service -  Special Rules for Kerala Homeopathy Subordinate Service Rules, 1999 introducing new qualifications  Vacancy arising subsequent to coming into force of the said special rules  Held, Vacancies have to be filled up only in accordance with Special Rules, 1999. Unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by Special Rules. State Government has the power to frame or amend the Special Rules with or without retrospective effect. Mohanan K.R. & anr vs Director of Homeopathy, Kerala Homeopathy Services, Trivandrum & ors. -  Reversal of the conviction is therefore bad; The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. P1 agreement admittedly entered into by the parties make it clear that the respondent was issuing the cheque to the appellant as security and the amount stipulated in the agreement would be paid within six months, and that in case of failure to pay the stipulated amount within six months, the appellant would be entitled to present the cheque in the bank.',
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		'judgement' => '<p style="text-align: justify;">K.A. Abdul Gafoor, J.</p><p style="text-align: justify;">1. Reversing the conviction ordered by the Judicial Magistrate of the First Class-II, Kochi, the learned II Additional Sessions Judge, Ernakulam acquitted the1st respondent. Therefore the appellant/complainant has come up with this appeal against the acquittal.</p><p style="text-align: justify;">2. The offence alleged are that punishable Under Section 138 of the Negotiable Instruments Act and Under Section 420 of the IPC. The subject matter was Ext.P2 cheque dated 5.5.1993 for an amount of Rs. 20,000/- issued by the accused/1st respondent. When the cheque was presented to the bank, it bounced. So the offence as alleged has been committed by the 1st respondent. Reversal of the conviction is therefore bad; the appellant submits.</p><p style="text-align: justify;">3. The finding of the learned Sessions Judge that Ext.P2 cheque was issued as a security and therefore does not attract Section 138, now cannot be accepted in the light of the decision of the Apex Court in I.C.D.S. Ltd. v. Beena Shabeer, 2002 (3) KLT 218. Even a cheque issued by the guarantor to ensure repayment of loan by the principal debtor was found, in that case, supported by due consideration and issued to discharge legally enforceable liability to attract the provision in Section 138. Moreover, there was Ext.P1 agreement between the parties with regard to the sale of the bus. The cheque in question was issued with the stipulation in the said agreement that the cheque was issued as a security for the payment of the amount assured in Ext.P1 agreement. It could have been encashed if the assured payment was not made after six months from the date of Ext.P1. Ext.P1 was dated 27.10.1992. Ext.P2 cheque was dated 5.5.93, after six months from Ext.P1 When presented, it was not cashed. Therefore, this was a cheque for an amount towards the liability incurred by the 1st respondent/ accused. So on merits also the learned II Additional Sessions Judge committed error to reverse the conviction, the counsel submits.</p><p style="text-align: justify;">4. The submission made by the counsel for the 1st respondent is that the amount has already been paid to the counsel appearing for the appellant in the Court below. In another proceedings, receipt has been produced before the Court below. Therefore, there was no liability. Moreover, Ext.P1 is earlier than Ext.P2 cheque which was issued for future payment. Therefore Ext.P2 which was made mention of in Ext.P1 did not represent any liability Wall. So, there is no reason to reverse the acquittal, the counsel for the respondent submits.</p><p style="text-align: justify;">5. The case relating to I.C.D.S. is one in respect of a cheque issued by a guarantor ensuring payment of a debt incurred by principal debtor in case of his default. Considering the word 'any debt or liability' appearing in Section 138, the Supreme Court held as follows:</p><p style="text-align: justify;">'The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words 'Where any cheque'. The above noted three words are of extreme significance, in particular, by reason of the user of the word 'any' the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any of debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment'.</p><p style="text-align: justify;">It has also been made clear that:</p><p style="text-align: justify;">'The language of the Statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act: 'Any cheque' and 'other liability' are the two key expressions which stands as clarifying the legislative intent So as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legislature'.</p><p style="text-align: justify;">This view was taken to reverse the findings of this Court. Necessarily, even if the cheque was drawn by the respondent on the date of Ext.P1, when the amount was not really due, at the proper time it could be presented before the bank and if bounced, provisions of Section 138 of the Act will apply.</p><p style="text-align: justify;">6. In this case, the cheque was presented after six months from 27.10.92, from the date of Ext.P1. Of course, Ext'.P2 cheque which has been entrusted by the appellant to the 1st respondent on 27.10.92 is seen dated 5.5.93. But Clause 3 and 4 in Ext.P1 agreement admittedly entered into by the parties make it clear that the respondent was issuing the cheque to the appellant as security and the amount stipulated in the agreement would be paid within six months, and that in case of failure to pay the stipulated amount within six months, the appellant would be entitled to present the cheque in the bank. That means, the 1st respondent had authorised the appellant to present it after six months in case there was default of payment of the amount mentioned in Ext.P1. In such circumstances, it was probable that the accused might have given even undated cheque or post dated cheque to the appellant to present it in the bank.</p><p style="text-align: justify;">7. Ext.P2 cheque was duly handed over representing that at that eventuality envisaged in Ext.P1, it .could be encashed. In such circumstances, it cannot be said that the cheque was issued representing security and hot liability. The cheque which had been issued as security was transformed itself into a cheque representing liability in terms of the agreement contained in Ext.P1 to which the 1st respondent was a party. Necessarily, the reversal of the conviction on that count cannot be sustained. Therefore it has to be found that the 1st respondent had committed offence punishable Under Section 138 of the Act.</p><p style="text-align: justify;">8. Of course, in doing so, the 1st respondent did not have a dishonest intention to attract Section 420 IPC. Therefore, the reversal of conviction under Section 420 by the learned II Additional Sessions Judge has to be upheld.</p><p style="text-align: justify;">9. In terms of the recent amendment introduced in Section 147 of the Act, every offence punishable under this Act shall be compoundable notwithstanding anything contained in the Criminal Procedure Code, 1973.</p><p style="text-align: justify;">10. In such circumstances, as it has been disclosed that the 1st respondent had paid the amount and that the appellant's counsel before the Court below had received the amount, it shall have to be taken by reason of the conduct of the parties that they have compounded the offence. Necessarily, though there is conviction, no sentence shall follows. The appeal is closed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
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Warning (2): Invalid argument supplied for foreach() [APP/View/Case/meta.ctp, line 39]
Code Context
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			'appealno' => 'Crl. A. No. 348 of 1996',
			'appellant' => 'Mohana Pai',
			'authreffered' => '',
			'casename' => 'Mohana Pai Vs. Jabbar',
			'casenote' => ' - LABOUR  & SERVICES
Appointment: [V.K. Bali, CH, P.R. Raman & S. Siri Jagan, JJ] Post of Pharmacist in Homeopathy Subordinate Service -  Special Rules for Kerala Homeopathy Subordinate Service Rules, 1999 introducing new qualifications  Vacancy arising subsequent to coming into force of the said special rules  Held, Vacancies have to be filled up only in accordance with Special Rules, 1999. Unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by Special Rules. State Government has the power to frame or amend the Special Rules with or without retrospective effect. Mohanan K.R. & anr vs Director of Homeopathy, Kerala Homeopathy Services, Trivandrum & ors. -  Reversal of the conviction is therefore bad; The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. P1 agreement admittedly entered into by the parties make it clear that the respondent was issuing the cheque to the appellant as security and the amount stipulated in the agreement would be paid within six months, and that in case of failure to pay the stipulated amount within six months, the appellant would be entitled to present the cheque in the bank.',
			'caseanalysis' => null,
			'casesref' => 'I.C.D.S. Ltd. v. Beena Shabeer;',
			'citingcases' => '',
			'counselplain' => ' O. Ramachandran Nambiar,; K.S. Babu,; N. Sudha,; ',
			'counseldef' => ' M.V.S. Nampoothiry,; P.V. Kunhikrishnan, Advs. and; T.K.',
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			'judge' => ' K.A. Abdul Gafoor, J.',
			'judgement' => '<p style="text-align: justify;">K.A. Abdul Gafoor, J.</p><p style="text-align: justify;">1. Reversing the conviction ordered by the Judicial Magistrate of the First Class-II, Kochi, the learned II Additional Sessions Judge, Ernakulam acquitted the1st respondent. Therefore the appellant/complainant has come up with this appeal against the acquittal.</p><p style="text-align: justify;">2. The offence alleged are that punishable Under Section 138 of the Negotiable Instruments Act and Under Section 420 of the IPC. The subject matter was Ext.P2 cheque dated 5.5.1993 for an amount of Rs. 20,000/- issued by the accused/1st respondent. When the cheque was presented to the bank, it bounced. So the offence as alleged has been committed by the 1st respondent. Reversal of the conviction is therefore bad; the appellant submits.</p><p style="text-align: justify;">3. The finding of the learned Sessions Judge that Ext.P2 cheque was issued as a security and therefore does not attract Section 138, now cannot be accepted in the light of the decision of the Apex Court in I.C.D.S. Ltd. v. Beena Shabeer, 2002 (3) KLT 218. Even a cheque issued by the guarantor to ensure repayment of loan by the principal debtor was found, in that case, supported by due consideration and issued to discharge legally enforceable liability to attract the provision in Section 138. Moreover, there was Ext.P1 agreement between the parties with regard to the sale of the bus. The cheque in question was issued with the stipulation in the said agreement that the cheque was issued as a security for the payment of the amount assured in Ext.P1 agreement. It could have been encashed if the assured payment was not made after six months from the date of Ext.P1. Ext.P1 was dated 27.10.1992. Ext.P2 cheque was dated 5.5.93, after six months from Ext.P1 When presented, it was not cashed. Therefore, this was a cheque for an amount towards the liability incurred by the 1st respondent/ accused. So on merits also the learned II Additional Sessions Judge committed error to reverse the conviction, the counsel submits.</p><p style="text-align: justify;">4. The submission made by the counsel for the 1st respondent is that the amount has already been paid to the counsel appearing for the appellant in the Court below. In another proceedings, receipt has been produced before the Court below. Therefore, there was no liability. Moreover, Ext.P1 is earlier than Ext.P2 cheque which was issued for future payment. Therefore Ext.P2 which was made mention of in Ext.P1 did not represent any liability Wall. So, there is no reason to reverse the acquittal, the counsel for the respondent submits.</p><p style="text-align: justify;">5. The case relating to I.C.D.S. is one in respect of a cheque issued by a guarantor ensuring payment of a debt incurred by principal debtor in case of his default. Considering the word 'any debt or liability' appearing in Section 138, the Supreme Court held as follows:</p><p style="text-align: justify;">'The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words 'Where any cheque'. The above noted three words are of extreme significance, in particular, by reason of the user of the word 'any' the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any of debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment'.</p><p style="text-align: justify;">It has also been made clear that:</p><p style="text-align: justify;">'The language of the Statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act: 'Any cheque' and 'other liability' are the two key expressions which stands as clarifying the legislative intent So as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legislature'.</p><p style="text-align: justify;">This view was taken to reverse the findings of this Court. Necessarily, even if the cheque was drawn by the respondent on the date of Ext.P1, when the amount was not really due, at the proper time it could be presented before the bank and if bounced, provisions of Section 138 of the Act will apply.</p><p style="text-align: justify;">6. In this case, the cheque was presented after six months from 27.10.92, from the date of Ext.P1. Of course, Ext'.P2 cheque which has been entrusted by the appellant to the 1st respondent on 27.10.92 is seen dated 5.5.93. But Clause 3 and 4 in Ext.P1 agreement admittedly entered into by the parties make it clear that the respondent was issuing the cheque to the appellant as security and the amount stipulated in the agreement would be paid within six months, and that in case of failure to pay the stipulated amount within six months, the appellant would be entitled to present the cheque in the bank. That means, the 1st respondent had authorised the appellant to present it after six months in case there was default of payment of the amount mentioned in Ext.P1. In such circumstances, it was probable that the accused might have given even undated cheque or post dated cheque to the appellant to present it in the bank.</p><p style="text-align: justify;">7. Ext.P2 cheque was duly handed over representing that at that eventuality envisaged in Ext.P1, it .could be encashed. In such circumstances, it cannot be said that the cheque was issued representing security and hot liability. The cheque which had been issued as security was transformed itself into a cheque representing liability in terms of the agreement contained in Ext.P1 to which the 1st respondent was a party. Necessarily, the reversal of the conviction on that count cannot be sustained. Therefore it has to be found that the 1st respondent had committed offence punishable Under Section 138 of the Act.</p><p style="text-align: justify;">8. Of course, in doing so, the 1st respondent did not have a dishonest intention to attract Section 420 IPC. Therefore, the reversal of conviction under Section 420 by the learned II Additional Sessions Judge has to be upheld.</p><p style="text-align: justify;">9. In terms of the recent amendment introduced in Section 147 of the Act, every offence punishable under this Act shall be compoundable notwithstanding anything contained in the Criminal Procedure Code, 1973.</p><p style="text-align: justify;">10. In such circumstances, as it has been disclosed that the 1st respondent had paid the amount and that the appellant's counsel before the Court below had received the amount, it shall have to be taken by reason of the conduct of the parties that they have compounded the offence. Necessarily, though there is conviction, no sentence shall follows. The appeal is closed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Crl. A. No. 348 of 1996',
		'appellant' => 'Mohana Pai',
		'authreffered' => '',
		'casename' => 'Mohana Pai Vs. Jabbar',
		'casenote' => ' - LABOUR  & SERVICES
Appointment: [V.K. Bali, CH, P.R. Raman & S. Siri Jagan, JJ] Post of Pharmacist in Homeopathy Subordinate Service -  Special Rules for Kerala Homeopathy Subordinate Service Rules, 1999 introducing new qualifications  Vacancy arising subsequent to coming into force of the said special rules  Held, Vacancies have to be filled up only in accordance with Special Rules, 1999. Unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by Special Rules. State Government has the power to frame or amend the Special Rules with or without retrospective effect. Mohanan K.R. & anr vs Director of Homeopathy, Kerala Homeopathy Services, Trivandrum & ors. -  Reversal of the conviction is therefore bad; The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. P1 agreement admittedly entered into by the parties make it clear that the respondent was issuing the cheque to the appellant as security and the amount stipulated in the agreement would be paid within six months, and that in case of failure to pay the stipulated amount within six months, the appellant would be entitled to present the cheque in the bank.',
		'caseanalysis' => null,
		'casesref' => 'I.C.D.S. Ltd. v. Beena Shabeer;',
		'citingcases' => '',
		'counselplain' => ' O. Ramachandran Nambiar,; K.S. Babu,; N. Sudha,; ',
		'counseldef' => ' M.V.S. Nampoothiry,; P.V. Kunhikrishnan, Advs. and; T.K.',
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		'judge' => ' K.A. Abdul Gafoor, J.',
		'judgement' => '<p style="text-align: justify;">K.A. Abdul Gafoor, J.</p><p style="text-align: justify;">1. Reversing the conviction ordered by the Judicial Magistrate of the First Class-II, Kochi, the learned II Additional Sessions Judge, Ernakulam acquitted the1st respondent. Therefore the appellant/complainant has come up with this appeal against the acquittal.</p><p style="text-align: justify;">2. The offence alleged are that punishable Under Section 138 of the Negotiable Instruments Act and Under Section 420 of the IPC. The subject matter was Ext.P2 cheque dated 5.5.1993 for an amount of Rs. 20,000/- issued by the accused/1st respondent. When the cheque was presented to the bank, it bounced. So the offence as alleged has been committed by the 1st respondent. Reversal of the conviction is therefore bad; the appellant submits.</p><p style="text-align: justify;">3. The finding of the learned Sessions Judge that Ext.P2 cheque was issued as a security and therefore does not attract Section 138, now cannot be accepted in the light of the decision of the Apex Court in I.C.D.S. Ltd. v. Beena Shabeer, 2002 (3) KLT 218. Even a cheque issued by the guarantor to ensure repayment of loan by the principal debtor was found, in that case, supported by due consideration and issued to discharge legally enforceable liability to attract the provision in Section 138. Moreover, there was Ext.P1 agreement between the parties with regard to the sale of the bus. The cheque in question was issued with the stipulation in the said agreement that the cheque was issued as a security for the payment of the amount assured in Ext.P1 agreement. It could have been encashed if the assured payment was not made after six months from the date of Ext.P1. Ext.P1 was dated 27.10.1992. Ext.P2 cheque was dated 5.5.93, after six months from Ext.P1 When presented, it was not cashed. Therefore, this was a cheque for an amount towards the liability incurred by the 1st respondent/ accused. So on merits also the learned II Additional Sessions Judge committed error to reverse the conviction, the counsel submits.</p><p style="text-align: justify;">4. The submission made by the counsel for the 1st respondent is that the amount has already been paid to the counsel appearing for the appellant in the Court below. In another proceedings, receipt has been produced before the Court below. Therefore, there was no liability. Moreover, Ext.P1 is earlier than Ext.P2 cheque which was issued for future payment. Therefore Ext.P2 which was made mention of in Ext.P1 did not represent any liability Wall. So, there is no reason to reverse the acquittal, the counsel for the respondent submits.</p><p style="text-align: justify;">5. The case relating to I.C.D.S. is one in respect of a cheque issued by a guarantor ensuring payment of a debt incurred by principal debtor in case of his default. Considering the word 'any debt or liability' appearing in Section 138, the Supreme Court held as follows:</p><p style="text-align: justify;">'The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words 'Where any cheque'. The above noted three words are of extreme significance, in particular, by reason of the user of the word 'any' the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any of debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment'.</p><p style="text-align: justify;">It has also been made clear that:</p><p style="text-align: justify;">'The language of the Statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act: 'Any cheque' and 'other liability' are the two key expressions which stands as clarifying the legislative intent So as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legislature'.</p><p style="text-align: justify;">This view was taken to reverse the findings of this Court. Necessarily, even if the cheque was drawn by the respondent on the date of Ext.P1, when the amount was not really due, at the proper time it could be presented before the bank and if bounced, provisions of Section 138 of the Act will apply.</p><p style="text-align: justify;">6. In this case, the cheque was presented after six months from 27.10.92, from the date of Ext.P1. Of course, Ext'.P2 cheque which has been entrusted by the appellant to the 1st respondent on 27.10.92 is seen dated 5.5.93. But Clause 3 and 4 in Ext.P1 agreement admittedly entered into by the parties make it clear that the respondent was issuing the cheque to the appellant as security and the amount stipulated in the agreement would be paid within six months, and that in case of failure to pay the stipulated amount within six months, the appellant would be entitled to present the cheque in the bank. That means, the 1st respondent had authorised the appellant to present it after six months in case there was default of payment of the amount mentioned in Ext.P1. In such circumstances, it was probable that the accused might have given even undated cheque or post dated cheque to the appellant to present it in the bank.</p><p style="text-align: justify;">7. Ext.P2 cheque was duly handed over representing that at that eventuality envisaged in Ext.P1, it .could be encashed. In such circumstances, it cannot be said that the cheque was issued representing security and hot liability. The cheque which had been issued as security was transformed itself into a cheque representing liability in terms of the agreement contained in Ext.P1 to which the 1st respondent was a party. Necessarily, the reversal of the conviction on that count cannot be sustained. Therefore it has to be found that the 1st respondent had committed offence punishable Under Section 138 of the Act.</p><p style="text-align: justify;">8. Of course, in doing so, the 1st respondent did not have a dishonest intention to attract Section 420 IPC. Therefore, the reversal of conviction under Section 420 by the learned II Additional Sessions Judge has to be upheld.</p><p style="text-align: justify;">9. In terms of the recent amendment introduced in Section 147 of the Act, every offence punishable under this Act shall be compoundable notwithstanding anything contained in the Criminal Procedure Code, 1973.</p><p style="text-align: justify;">10. In such circumstances, as it has been disclosed that the 1st respondent had paid the amount and that the appellant's counsel before the Court below had received the amount, it shall have to be taken by reason of the conduct of the parties that they have compounded the offence. Necessarily, though there is conviction, no sentence shall follows. The appeal is closed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'prhistory' => '',
		'pubs' => 'II(2005)BC582; 2005(1)KLT118',
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include - APP/View/Case/meta.ctp, line 39
View::_evaluate() - CORE/Cake/View/View.php, line 971
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LAW: Section 420, Section 138, Section 138, Section 138, Section 420 IPC, Section 420, Section 147 of the Act, the Criminal Procedure Code

PERSON: K.A. Abdul Gafoor, Ernakulam, Beena Shabeer, P2, Therefore Ext, P2, Ext', P2

NORP: J.1, respondent/, Statute, contra

ORG: the Judicial Magistrate, IPC, Ext, accused/1st, Ext, the Apex Court, Ext, Ext, Ext, Ext, Court, Court, Ext, Ext, the Supreme Court, the High Court, Court, Ext, Ext, Ext, Ext, Ext, Court

ORDINAL: First, first, first, 1st, 1st, 1st

LOC: Kochi

FAC: II Additional Sessions, II Additional Sessions, II Additional Sessions

DATE: 5.5.1993, the 1st, 2002, six months, 27.10.1992, six months, the 1st, the 1st, six months, six months, six months, the 1st, six months, the 1st, the 1st

CARDINAL: 20,000/-, 3, 218, three, three, three, one, two, 27.10.92, 27.10.92, 3 and 4, 1973.10

PRODUCT: Section 138, Section 138, Section 138

GPE: I.C.D.S., KLT, I.C.D.S., Ext