CRMA No. 61-MA of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CRMA No.61-MA of 2009 Date of Decision:February 24, 2010 Satinder Kumar ...........Appellant Versus Gurvinder Singh ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Amaninder Preet, Advocate for the appellant. ** Sabina, J. Complainant-Satinder Kumar filed a complaint under Section 138 of the Negotiable Instruments Act (`the Act' for short) against accused-Gurvinder Singh respondent. Vide judgment dated 10.9.2008 passed by the Chief Judicial Magistrate, Faridkot respondent was acquitted of the charge framed against him. Hence, the complainant-appellant has filed this application under Section 378(4) of the Code of Criminal Procedure for grant of leave to file an appeal against the order mentioned above. Brief facts of the case, as noticed by the trial Court, in para 1 of its judgment, are reproduced here in below:- “ 1,Satinder Kumar complainant has filed this complaint against CRMA No. 61-MA of 2009 2 accused Gurvinder Singh under Section 138 of the Negotiable Instruments Act. It is the case of the complainant that accused having liability of Rs. 8,00,000/- for payment to the complainant promised to discharge the same as and when asked by the complainant. On 31.8.2005 when the complainant asked the accused to discharge his liability he issued a cheque bearing No.458715 dated 31.8.2005 worth Rs.8,00,000/- drawn on Punjab National Bank, Faridkot out of his account No.21091 in favour of the complainant. The complainant presented the said cheque for encashment in the bank through his banker State Bank of Patiala, Faridkot, where the complainant is having his account bearing No.593190 but the bank authorities returned the cheque to the complainant with the remarks “Exceeds Arrangement”, vide memo dated 23.9.2005. After return of the cheque the complainant got issued registered notice through counsel on 7.10.2005 to the accused calling upon him to make payment of the said cheque which was received by him on 8.10.2005. The accused issued the cheque knowing fully well that there were no funds available in his account to honour the cheque in order to cheat the complainant and has committed an offence punishable under Section 138 of the Negotiable Instruments Act. Hence, this complaint.” After hearing the learned counsel for the appellant. I am of the opinion that the instant appeal is devoid of any merit. The trial Court, while acquitting the respondent, has observed in para 11 of its judgment as under:- CRMA No. 61-MA of 2009 3 "11. The contention of the learned counsel for the complainant that the accused in order to discharge his liability had issued a cheque for Rs.8,00,000/- which was dishonoured for want of sufficient funds and as such the accused is liable under the provisions of Section 138 of the Negotiable Instruments Act, cannot be accepted as the cheque in this case Ex.C1 has been proved to have been issued as security for the future and uncertain liability i.e. to get the sale deed executed and this fact has been admitted by the complainant that the parties had entered into an agreement for sale of a shop. He had to purchase the shop for Rs.8,00,000/-. The accused had got the papers for sale prepared and were got signed from the Executive Magistrate, but the shop could not be transferred in his name. The papers are lying with him. The cheque in question was given to him on the day of agreement, which was post dated cheque. If the shop would have been transferred to his name, the cheque would have come to an end (it would have become a waster paper), otherwise the amount was to be obtained. In the last line of his cross-examination conducted on 4.10.2007 the complainant admitted that the agreement was for a sum of Rs.5,00,000/-. All this shows that the cheque was as security for getting the sale deed executed and further it was not for present or past liability, rather for future uncertain liability having arisen in case of non-execution of the sale deed. One thing more which creates a doubt about the issuance of cheque towards any liability is that the cheque is for Rs.8,00,000/- and the agreement was for Rs.5,00,000/- only. If it CRMA No. 61-MA of 2009 4 was for the liability to pay the said amount then it would have been for the amount in question i.e. Rs.5,00,000/- and not for Rs.8,00,000/-. This shows that the security was sought of more amount than the actual amount. So, the complainant himself has admitted and proved the factum of issuance of cheque as a security and not as a liability towards any debt and this being so, the rations laid down in Umesh Sharma's case (ibid) relied upon by the learned counsel for the accused, is fully applicable to this case wherein it has been held that “in case of dishonour of cheque having been issued in respect of uncertain future liabilities, Section 138 of the Negotiable Instruments Act is not applicable to launch prosecution, as the prosecution for offence under Section 138 us attracted only when cheque is issued in respect of current or past liabilities”. Further the ratio laid down in Samudra Ropo's case (ibid) referred to and relied upon by the learned counsel for the accused that “where a cheque was given by the accused as security and was not meant to be deposited as per understanding between the parties, and it was dishonoured, the accused was not liable under Section 138.” It was further held in the said citation that “when the cheque given as security for goods already purchased and for future purchases, was dishonoured, no criminal liability under Section 138 of Negotiable Instruments Act arises.” In view of the law laid down in the above referred citations and the fact that the complainant has himself admitted that the cheque was as security, the accused cannot be held liable CRMA No. 61-MA of 2009 5 for dishonour of cheque falling under Section 138 of the Negotiable Instruments Act. Hence, it is held that there was no legal liability at the time of issuance of cheque by the accused in favour of the complainant and the cheque was given as security to get the sale deed executed the accused is not liable under the provisions of Section 138 of the Negotiable Instruments Act and as such the points No. (i) and (ii) are answered in the positive and point No. (iii) is answered in the negative.” Thus, the trial Court has given sound reasons while acquitting the accused of the charge framed against him. Learned counsel for the appellant has failed to point out any misreading of evidence. No ground is made out to grant leave to file an appeal. Accordingly, this application is dismissed. (Sabina) Judge February 24 , 2010 arya