2008 ALL MR (Cri) JOURNAL 234
(MADHYA PRADESH HIGH COURT)
B.M. GUPTA, J.
Babulal Vs. Kewal Chand
Misc. Cri. Case No.4445 of 2007
18th September, 2007
Petitioner Counsel: Shri. R. K. SHARMA
Respondent Counsel: Shri. AKSHAY JAIN
Negotiable Instruments Act (1881) Ss.138, 5, 6, 9 - Cheque issued by accused to respondent for debt due - Relevant part of cheque stated "Pay to Self.....or bearer Rupees One lakh Fifty Thousand only" - Respondent was bearer of the cheque and also a holder in due course thereof as it was issued against a debt/liability - Held contention that as cheque was not drawn in favour of any specific person S.138 did not apply could not be sustained. 1997 Cri.L.J. 2868 - Rel. on. 2005 Cri.L.J. 3598 - Disting. (Para 6)
2. This petition is for impugning the criminal proceeding pending against the petitioner in Criminal Case No.180/07 in the Court of Judicial Magistrate First Class, Aron, Distt. Guna, based on a private complaint filed by respondent under section 138 of Negotiable Instruments Act (herein after referred to as the Act) and also the impugned order dt.19th June, 2007 by which the learned Magistrate has taken cognizance against the petitioner.
3. Shri. Sharma, for petitioner, has submitted that the cheque in question was not issued by the petitioner to the respondent in his name. The cheque annexure P/5 was issued by the petitioner to himself while mentioning the word "self" in the cheque. He has also submitted that cheque is a bill of exchange under Section 6 of the Act and as defined in Section 5 of the Act, cheque is always to be issued to a certain person. In support Shri. Sharma has drawn attention of the Court on an order passed by a Single Bench of Gauhati High Court in Dr. Jiten Barkakoti Vs. Subrata Patangia and another, 2005 Cri.L.J. 3598.
4. Shri. Jain, for respondent has submitted that the cheque was bearer also, which can be enchashed by the respondent/complainant. As per the averment in the complaint and statements of the witness the cheque was given against legal liability of the petitioner. He placed reliance on a judgment of a Single Bench of Punjab and Haryana High Court in Mahesh Goyal Vs. S. K. Sharma, 1997 Cri.L.J. 2868.
5. "Bill of exchange" - A "bill of exchange" is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to or to the order of, a certain person or to the bearer of the instrument..........
6. "Cheque" - A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form..............
9. "Holder in due course" - "Holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or endorsee thereof, if (payable to order), before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.
138. Dishonour of cheque for insufficiency, etc., of funds in the account - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid"............... (emphasis supplied)
6. While highlighting the averment in paragraphs 1 and 2 of the complaint and the statement of complainant and paragraph 2 of the statement of Shital Chand and Shadilal Sharma, Shri. Akshay Jain, Advocate for respondent has submitted that the cheque was issued by the petitioner for a debt due on him. This argument was not countered by Shri. Sharma for the petitioner. Thus, it appears that the cheque in question was issued by petitioner to the respondent for liability of debt due on him. As provided by Section 9, the respondent becomes holder in due course with regard to cheque in question. The relevant part of the cheque goes - "Pay to.... Self... or bearer Rupees One lac Fifty Thousand only" - shows that the cheque was bearer also as the words 'or bearer' were not cut by the petitioner. As provided by section 6 of the Act, a cheque is a bill of exchange and as provided by Section 5 of the Act, bill of exchange is an instrument in writing signed by the maker directing a certain person to pay a certain sum of money only to or to the order of, a certain person or to the bearer of the instrument. It cannot be negated that the respondent is a bearer of the cheque in question and also holder in due course thereof, which was issued against a debt/liability. In view of this, the contention of Shri. Sharma that as the cheque was not drawn for any specific person, the provision of Section 138 of the Act do not apply, cannot be sustained. Similar view has been taken by a Single Bench of Punjab and Hariyana High Court in the case of Mahesh Goyal (supra).
7. As per the facts of the case of Dr. Jiten Barkakoti (supra), it appears that the cheque in question was not a bearer cheque, as it is in the present case. Hence, the ratio of that order does not help the contention of Shri. Sharma in this case.