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IN THE SUPREME COURT OF INDIA
CRIMINAL APPEAL NO. 830 OF 2014
(Arising out of SLP (Crl.) No.9752 of 2010)
M/s. Indus Airways Pvt. Ltd. & Ors. … Appellants
JUDGMENT
2. The only question that arises for consideration in this appeal by special leave is, whether the post-dated cheques issued by the appellants (hereinafter referred to as ‘purchasers’) as an advance payment in respect of purchase orders could be considered in discharge of legally enforceable debt or other liability, and, if so, whether the dishonour of such cheques amounts to an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the N.I. Act’). The Delhi High Court in the impugned order has held that to be so. Page 2
3. The brief facts are these: On 19.02.2007 and 26.02.2007, the purchasers placed two purchase orders for supply of certain aircraft parts with respondent No.1, M/s. Magnum Aviation Pvt. Ltd. (hereinafter referred to as ‘supplier’). In respect of these purchase orders, the purchasers also issued two post-dated cheques dated 15.03.2007 for a sum of Rs.34,57,164/- and 20.03.2007 for a sum of Rs.15,91,820/-. The said cheques were issued by way of advance payment for the purchase orders. One of the terms and conditions of the contract was that the entire payment would be given to the supplier in advance. The supplier says that the advance payment was made by the purchasers as it had to procure the parts from abroad.
4. These cheques got dishonoured when they were presented on the ground that the purchasers had stopped payment.
5. It is not in dispute that the supplier received letter dated 22.03.2007 from the purchasers cancelling the purchase orders and requesting the supplier to return both the cheques.
6. The supplier sent response to the letter dated 22.03.2007 on 23.03.2007 asking the purchasers as to when the supplier could collect the payment. Thereafter, on 12.04.2007, the supplier sent a notice to the purchasers and then filed a complaint against the purchasers under Section 138 of the N.I. Act before the Court of Additional Chief Metropolitan Magistrate, New Delhi. Page 3
7. On 22.05.2007, the concerned Additional Chief Metropolitan Magistrate took cognizance of the alleged offence and issued summons to the purchasers.
8. The purchasers challenged the order issuing summons in a revision petition under Section 397 of the Code of Criminal Procedure, 1973 (for short, ‘Code’). The Additional Sessions Judge, after hearing the parties, allowed the revision petition vide order dated 02.09.2008 and quashed the process issued by the Additional Chief Metropolitan Magistrate.
9. The supplier challenged the order of the Additional Sessions Judge in a petition under Section 482 of the Code before the High Court. The High Court allowed the petition, set aside the order of the Additional Sessions Judge and restored the order of the Additional Chief Metropolitan Magistrate issuing process to the purchasers.
10. The Delhi High Court following its earlier decision in Mojj Engineering[1] held that the issuance of a cheque at the time of signing such contract has to be considered against a liability, as the amount written in the cheque is payable by the person on the date mentioned in the cheque.
11. Section 138 of the N.I. Act is as follows: M/s. Mojj Engineering Systems Limited and others v. M/s. A.B. Sugars Ltd. [154 (2008) Delhi Law Times 579] Page 4
12. The interpretation of the expression ‘for discharge of any debt or other liability’ occurring in Section 138 of the N.I. Act is significant and decisive of the matter. Page 5
13. The explanation appended to Section 138 explains the meaning of the expression ‘debt or other liability’ for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an exiting debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability.
14. In Swastik Coaters[2], the single Judge of the Andhra Pradesh High Court while considering the explanation to Section 138 held: “……..Explanation to Section 138 of the Negotiable Instruments Act clearly makes it clear that the cheque shall be relateable to an enforceable liability or debt and as on the date of M/s. Swastik Coaters Pvt. Ltd v. M/s. Deepak Brothers and others; [1997 Cri. L.J. 1942 (AP)] Page 6 the issuing of the cheque there was no existing liability in the sense that the title in the property had not passed on to the accused since the goods were not delivered. ……..”
15. The Gujarat High Court in Shanku Concretes[3] dealing with Section 138 of the N.I. Act held that to attract Section 138 of the N.I. Act, there must be subsisting liability or debt on the date when the cheque was delivered. The very fact that the payment was agreed to some future date and there was no debt or liability on the date of delivery of the cheques would take the case out of the purview of Section 138 of the N.I. Act. While holding so, Gujarat High Court followed a decision of the Madras High Court in Balaji Seafoods[4].
16. In Balaji Seafoods[4], the Madras High Court held: “Section 138 of the Negotiable Instruments Act makes it clear that where the 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, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence under Section 138 of the Act. The explanation reads that for the purposes of this section, ‘debt or other liability’ means a legally enforceable debt or liability.” Shanku Concretes Pvt. Ltd. and others v. State of Gujarat and another; [2000 Cri. L.J.1988 (Guj.)] M/s. Balaji Seafoods Exports (India) Ltd. and another v. Mac Industries Ltd.; [1999 (1) CTC 6] Page 7
17. The Kerala High Court in Ullas[5] had an occasion to consider Section 138 of the N.I. Act. In that case, the post-dated cheque was issued by the accused along with the order for supply of goods. The supply of goods was not made by the complainant. The accused first instructed the bank to stop payment against the cheque and then requested the complainant not to present the cheque as he had not supplied the goods. The cheque was dishonoured. The single Judge of the Kerala High Court held, “………Ext.P[1] cheque cannot be stated to be one issued in discharge of the liability to the tune of the amount covered by it, which was really issued, as is revealed by Ext. D[1], as the price amount for 28 numbers of mixies, which the complainant had not supplied. …..”
18. The reasoning of the Delhi High Court in the impugned order is as follows:
19. The above reasoning of the Delhi High Court is clearly flawed inasmuch as it failed to keep in mind the fine distinction between civil liability and criminal liability under Section 138 of the N.I. Act. If at the time of entering into a contract, it is one of the conditions of the contract that the purchaser has to pay the amount in advance and there Page 9 is breach of such condition then purchaser may have to make good the loss that might have occasioned to the seller but that does not create a criminal liability under Section 138. For a criminal liability to be made out under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. We are unable to accept the view of the Delhi High Court that the issuance of cheque towards advance payment at the time of signing such contract has to be considered as subsisting liability and dishonour of such cheque amounts to an offence under Section 138 of the N.I. Act. The Delhi High Court has traveled beyond the scope of Section 138 of the N.I. Act by holding that the purpose of enacting Section 138 of the N.I. Act would stand defeated if after placing orders and giving advance payments, the instructions for stop payments are issued and orders are cancelled. In what we have discussed above, if a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise and material or goods for which purchase order was placed is not supplied by the supplier, in our considered view, the cheque cannot be said to have been drawn for an existing debt or liability.
20. In our opinion, the view taken by Andhra Pradesh High Court in Swastik Coaters[2], Madras High Court in Balaji Seafoods[4], Gujarat High Court in Shanku Concretes[3] and Kerala High Court in Page 10 Ullas[5] is the correct view and accords with the scheme of Section 138 of the N.I. Act.
21. The view taken by Delhi High Court is plainly wrong and does not deserve acceptance.
22. Criminal Appeal is, accordingly, allowed; the impugned judgment of Delhi High Court is set aside; and the order of the Sessions Judge is restored. …..………………………….J. (R.M. Lodha) …..………………………….J. (Shiva Kirti Singh) New Delhi, April 7, 2014.