21. Moreso, from the materials on record it has been found that the cheque was drawn some time in 2004 and it was presented in the Bank in the month of September, 2007 i.e. beyond the period of six months from the date on which it was drawn. A cheque receiving in the year 2004, filling up the various columns later on, at the sweet will of the complainant, if presented in the Bank after a long gap of 3/4 years, undoubtedly the same is a fraud upon the drawer of the cheque and if this Court allows to continue such practice, that would be sheer indulgence to the creditors to be more oppressive to the debtors.
22. The similar view has bann taken by the High Court, Andra Pradesh in the case of Taher N. Khambat vs Vinayak Enterprises (AP) reported in Company Cases, Vol. 86, year 1996, Pages -171 to 477. In the reported case, the accused issued a signed blank cheque in favour of the complainant of that case as security for payment of interest with the understanding that the complainant will present the cheque in the Bank if the accused fails to pay interest as stipulated. The High Court of Andhra Pradesh considered it seriously that if this sort of practice of taking blank signed cheque is allowed, every creditor would abuse the provisions of section 138 of the N I Act obtaining blank cheques and putting the debtors in fear of prosecution insist on discharge t of the debts at any time and it was also considered in the reported case that the same was not the intention of the legislature while incorporating section 138 in the NI Act, 1881.
23. In fact, a blank signed cheque is generally taken by a creditor from the debtors in order to create more and more pressure so that the debtors make the payment of the creditors but whenever a cheque is drawn for making of payment as provided in section 138 of the NI Act and when the same is bounced, the section 138 of the NI Act will come to play its role. The findings and decision of the Indian reported case is very much relevant in coming such a decision that since the cheque was not issued for making payment of any amount to the payee, so the occurrence of this case did not come under the purview of section 138 of the NI Act. The relevant portion of the reported case (Company Cases Vol. 86, year 1996, pa6e 471-477) runs as follow:
“Section 138 of the Act is introduced with a view to avoid the malignant trade practice of indiscriminately issuing cheques without sufficient funds. The amendment is introduced with a view to curb instances of issuing such cheques indiscriminately. So, having regard to the purpose with which this provision is introduced, it is doubtful whether a case of this nature can be construed as attracting the provision. of section 138 of the Act. In the instant case, the appellant advanced some money to the respondents and obtained a pronote. It was stipulated that the respondents should pay interest every month. At the same time appellant-creditor took a bla’1k signed cheque from the respondents with the understanding that the complainant could fill the other columns in the cheque and present. If the respondents committed default in payment of interest. The respondents paid interest for about eight months and, thereafter, stopped payment of interest. Then the appellant put the elate on January 15, 1991, wrote his own name in the space intended for the payee and also mentioned the amount as Rs. 1,18,337 and presented the cheque.
Even at the time when he presented the cheque, he would not have expected that the cheque would be honoured. He was presenting the cheque only with a view to get an endorsement which would enable him to proceed under section 138 of the Act. If this sort of practice is allowed, every creditor would abuse the provisions of section 138 of the Act by obtaining blank cheques and putting the debtors in fear of prosecution insist on discharge of the debts at any time I do not think that would have been the intention of the Legislature while incorporating section 138 in the Negotiable Instruments Act, 1881.
Though the appellant did not state the circum tances under which he obtained the pronote and the cheque in his complaint yet it is clear from the evidence the circumstances under which the complainant obtained a signed blank cheque from the respondent. So, the appellant has obtained this blank signed cheque with a view to make use of it, as a threat to the respondents for realisation of the amount. So, it cannot be construed that the respondent) had issued the cheque voluntarily for discharge of any debt or legal liability as envisaged under section 138.1, therefore, find that the facts and circumstances of the case are not Ittracted by the provisions of section 138 of the Act and that the learned Magistrate was justified in acquitting the accused. Hence, the criminal appeal is dismissed.”
24. from the findings and decision of the reported case, noted above, it appears that the High Court of Andra Pradesh came to a such conclusion on the basis of a case which has almost similarly with the case in my hands.
25. Now, having regards to the discussion make hereinbefore 1 find it difficult to hold that the trial Court had applied his judicial mind in disposing of the case.
The learned Advocate appearing for the respondents though tried to convince me that since the cheque was issued by the accused in favour of the complainant and since the cheque was bounced for insufficiency of find the same occurrence is covered by section 138 of the NI Act. But the learned Advocate is almost silent as to the evidence of PWI as I have reproduced in this judgment that the amount, dates and name of the payee of the cheque has been written by the Manager of the complainant. The respondent will not be in any position to challenge their own evidence as given by the PW I at trial and the said evidence has established it beyond all reasonable doubt that at the time of drawing of that cheque that was a signed blank cheque and later on the blank columns has been written to give a proper shape of the cheque and to present the same in the Bank.
Now, since the cheque in question was not drawn in order to make payment of any amount rather the same was a signed blank cheque at the time of its drawn and whenever such a cheque is bounced that will not come under the purview of section 138 of the NI Act but the trial Court without considering all these material facts of the case wrongly found the accused guilty under section 138 of the NI Act, 1881. So, the judgment and the order of conviction and sentence is liable to be set-aside.
26. In the result, the appeal is allowed. The judgment and order dated 2-2-2011 passed by the Sessions Judge, Bogra in Sessions Case No. 59/C of 2009 is hereby set-aside. The convict appellant IS allowed to withdraw the amount deposited by him at the eve of presenting the appeal against the judgment of the trial Court.
27. Let a copy of his judgment and order be set to the concerned Court for information and necessary action.
Send down the lower Court’s record at once.
