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Cheque drawn and issued by a third party comes within purview of Section 138 of NI Act

In Vijuna V.K. Vs. Mithun K. and Ors., appeal was filed before the Kerala High Court against the order of the trial court sentencing the accused to simple imprisonment of 3 months and a fine of Rs. 3.50 Lakhs.

The complaint contended that he had provided a loan of Rs. 4.5 lakhs to the husband of the accused of which he returned only Rs. 1 Lakh. The accused undertook the liability of her husband for the balance amount of Rs. 3,50,000/- and issued a cheque  for that amount to the complainant in discharge of the liability. An agreement had also been executed in relation to the transaction. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused.

The plea of the accused is that she had not issued cheque to the complainant but the complainant had misused the cheque which he had got from her husband.

On appeal, the Kerala High Court decided that it is true that the accused had issued the cheque to the complainant not in discharge of any amount due from her to the complainant. What is proved is that she had drawn and delivered the cheque to the complainant in discharge of the liability of her husband to the complainant. The fact, that the accused had drawn and delivered the cheque to the complainant in discharge of the amount due from her husband to the complainant and not in discharge of any amount due from herself, does not mean that the offence under Section 138 of the Act is not attracted. Cheque drawn and issued by a person to the complainant, in discharge of the debt owed by another person to the complainant, comes within the purview of Section 138 of the Act (See Anil Sachar v. M/s. Sree Nath Spinners: MANU/SC/0838/2011 : AIR 2011 SC 2751, Alexander v. Joseph Chacko: MANU/KE/0072/1993 : 1993 (2) KLT 326, Komalam v. Mohanakumar: MANU/KE/0504/2008 : 2009 (3) KHC 269 : 2009 (3) KLT 263, Gopi v. Sudarshanan: 2002 KHC 4793 : 2002 (2) KLT 606 and Alex P. Oommen v. K.S.F.D.C. : MANU/KE/2017/2012 : 2012 (4) KHC 126).

The High Court also rejected the contention of the accused that the complainant had not sent the statutory notice to the accused in her correct address. Section 27 of the General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of the proviso to Section 138 of the Act stands complied with. Where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the General Clauses Act would be attracted.

On a query made by this Court, whether the accused had received summons in the case from the trial court with a copy of the complaint, learned counsel for the petitioner answered in the affirmative. In C.C. Alavi Haji v. Palapetty Muhammed: MANU/SC/2263/2007 : (2007) 6 SCC 555, the Supreme Court has held as follows:

"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act".

The court also found no merit in the contention of the learned counsel for the petitioner that notice does not contain particulars of the transaction and therefore, it is defective. The notice of demand for payment of the amount of the cheque need not state the nature of the liability or particulars of the transaction.

The High court therefore decided that there is no fault in the order of the trial court and that the appellate court had by reducing the sentence to imprisonment till the rising of the court had already shown the maximum possible leniency.

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