2003 (3) TMI 771 - HC - Indian Laws

Accused convicted for dishonored cheque under Section 138 - partial payments don't absolve liability.

R. Gopikuttan Pillai Versus Sankara Narayanan Nair

The court found the accused guilty under Section 138 of the Negotiable Instruments Act for issuing a dishonored cheque to discharge a legally enforceable ... - Issues Involved:1. Legally enforceable debt/liability under Section 138 of the Negotiable Instruments Act.2. Discharge of liability through part payments.3. Applicability of Section 138 when part payments are made before cheque presentation.4. Standard of proof for discharge of liability.5. Sentencing and compensation under Section 357(3) of the Criminal Procedure Code (Crl.P.C.).Issue-wise Detailed Analysis:1. Legally enforceable debt/liability under Section 138 of the Negotiable Instruments Act:The complainant alleged that the accused issued a cheque for Rs. 72,750/- to discharge a legally enforceable debt. The cheque was dishonored due to insufficient funds, leading to the prosecution under Section 138 of the Negotiable Instruments Act. The accused admitted the issuance of the cheque and the underlying debt of Rs. 60,000/- plus interest. The court found that the cheque was indeed issued for a legally enforceable debt/liability.2. Discharge of liability through part payments:The accused contended that part payments were made towards the liability under the cheque, evidenced by Exts. D1 and D2, which contained acknowledgments by the complainant. The total acknowledged payments amounted to Rs. 45,631/-. The accused also claimed additional payments under Ext. D3 series, amounting to Rs. 79,260/-, but these lacked acknowledgment from the complainant. The court rejected the Ext. D3 series as self-serving documents without any acknowledgment from the complainant.3. Applicability of Section 138 when part payments are made before cheque presentation:The court considered whether the remedy under Section 138 would be available if part payments were made before the cheque presentation. It concluded that part payments do not absolve the accused of liability under Section 138 unless the entire amount due is paid within 15 days of receiving the notice of demand. The court emphasized that Section 138 aims to ensure the credibility of cheque transactions, and partial discharge of liability should not defeat this purpose.4. Standard of proof for discharge of liability:The accused must prove the discharge of liability by the standard of preponderance of possibilities and probabilities, similar to a civil case. The court found that the accused failed to prove the discharge of the entire liability under Ext. P1 cheque, as the payments under Exts. D1 and D2 did not cover the full amount due. The court rejected the accused's claim of additional payments under Ext. D3 series due to the lack of acknowledgment.5. Sentencing and compensation under Section 357(3) of the Criminal Procedure Code (Crl.P.C.):The court set aside the acquittal and found the accused guilty under Section 138 of the Negotiable Instruments Act. The accused was sentenced to imprisonment till the rising of the court and directed to pay Rs. 30,000/- as compensation under Section 357(3) of the Crl.P.C. In default, the accused would undergo simple imprisonment for three months. The compensation amount included Rs. 27,000/- towards the liability under Ext. P1 cheque and Rs. 3,000/- for prosecution expenses.Conclusion:The court allowed the appeal, set aside the acquittal, and convicted the accused under Section 138 of the Negotiable Instruments Act. The accused was sentenced to imprisonment till the rising of the court and ordered to pay compensation, ensuring the complainant was compensated for the outstanding liability and prosecution expenses.