TaxTMI 
TaxTMI 
2021 (7) TMI 433
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....1/2004 convicting the petitioner for the offence under Section 138 of the Negotiable Instruments Act sentencing him to undergo rigorous imprisonment for one year and to pay a sum of Rs. One Lakh to the complainant company as compensation. Arguments on behalf of the petitioner 5. The learned senior counsel for the petitioner while advancing his argument, has submitted that though the dues was against the company in which the petitioner was working, but the cheque was issued by the petitioner from his personal account and accordingly, there was no debt recoverable from the petitioner in his personal capacity. It has been submitted that in such circumstances, the conviction of the petitioner under section 138 of Negotiable Instruments Act, 1881 cannot be sustained in the eyes of law. Learned senior counsel has relied upon a judgment passed by the Hon'ble Supreme Court in the case of "S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another" reported in (2005) 8 SCC 89. The learned senior counsel submits that there is a concept of vicarious liability when the cheque is issued by the company, but merely because one of the employees of the company has issued the cheque from ....
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.... to the complainant on one pretext or other, the complainant developed suspicion and insisted for payment of the entire outstanding dues forthwith and also stopped supplying railway tickets to the accused from 18.11.2003. On 28.11.2003 the accused came to the office of the complainant and handed over one account payee cheque dated 06.11.03 for Rs. 88,355/- being part payment of the aforesaid outstanding dues and it was issued by the accused from his personal saving bank account and at the time of handing over the said cheque, accused requested the complainant to produce the said cheque on or after 06.12.03 as in the meantime the accused promised to get one Cheque issued by his company towards payment of the entire outstanding dues. The complainant waited till 5th December, 2003 as per assurance of the accused for bringing the company's cheque but the accused never produced Cheque of his company, accordingly cheque of the accused was presented which stood dishonoured on the ground "Insufficiency of Funds". Thereafter the complainant apprised the accused about the dishonour of the aforesaid cheque over telephone and the accused requested the complainant to present it for encas....
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....e liability but the accused cannot escape from the liability of the company since he was acting on behalf of the company. The learned trial court also held that it was the accused only who was responsible for dues to the complainant. The learned Trial Court also recorded that so far as document on behalf of the defence and reply in terms of Section 313 Cr. P.C. the accused has not denied the liability of the complainant and had falsely deposed that the account pertaining to the cheque was not his personal account, rather the account of the company. The learned Trial Court also considered the letter written by the accused in his letter pad to the Managing Director of the complainant company on 25.11.2003 which is as follows:- "As per the letter of the company we will pay the Rly-Ticket within a month. But there is some reason were are unable to pay the amount. So, that I am submitting my personal cheque with should be kept on hold till sixth Dec, 03 as I intend to give the company's cheque before this date in exchange the same." Learned Trial Court also considered the defence document of the accused i.e. Exhibit-A said to be personally delivered to the complainant written on ....
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....ter dated 25.11.2003 issued by the petitioner, the complainant was asked by the accused to hold the cheque for some time as it was likely that his company would issue appropriate cheque in discharge of the entire debt. The cheque was issued by the petitioner only to the extent of Rs. 88,355/- and the entire amount payable to the complainant-company was to the tune of 1,33,101/-. Thus, the cheque was certainly issued in discharge of the legally enforceable debt. Further from aforesaid letter dated 25.11.2003, the petitioner clearly intended and indicated that the cheque was to be encashed if his company did not clear the dues of the complainant. The company having not cleared the dues of the complainant, the complainant presented the cheque which bounced twice. 14.This Court finds that the presumption in connection with issuance of cheque that the same was issued against legally enforceable debt could not be rebutted by the petitioner and the only argument advanced by the petitioner is that there was no legally enforceable debt against the petitioner and the debt was only against his company. As already held above in para 12 that there is no bar in issuance of cheque for discharg....