V.K.GUPTA, C.J. - (1.) AFTER hearing the learned counsel for the parties and on perusal of the complaint petition, I find that no offence is made out in this case against the petitioner. The complaint petition only talks of the issuance of the cheques by the petitioner -accused but without there being any corresponding liability or fact that the cheques in question were issued in discharge of any debt or any such obligation. Section 138 of the Negotiable Instruments Act, 1881 reads as under: - - "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, 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 the bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the among of the cheque, or with both: Provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."
(2.) , Viewed in the light of the aforesaid legal provision, when one reads the complaint petition carefully, all that one finds is the assertion by the complainant in the trial Court that the petitioner had issued two cheques favouring the complainant in purported intention of the complainant for buying the vehicle in question and that the amount covered by these two cheques was by way of advance payment of part purchase price of the vehicle. Even though the complaint petition does suggest clearly that those cheques were dishonoured by the banker of the complainant at the instruction of the banker of the petitioner -accused, it is not the case of the complainant that the vehicle in question was ever sold to the petitioner -accused or that the petitioner had taken delivery of the vehicle. It is quite possible that after the issuance of those two cheques, the petitioner had changed his mind and plan of buying the vehicle in question; it is quite possible that the petitioner -accused in total disregard to any courtesy, failed to inform the complainant that he did not want to purchase the vehicle. What, therefore, emerges is that the complainant did not sell the vehicle to the petitioner and the petitioner did not purchase the vehicle from the complainant. In other words, it is the own case of the complainant that no amount was ever due to it from the petitioner or that the petitioner owed any amount to it by way of any purchase price of the vehicle or otherwise. Coming to Section 138 of the Negotiable Instruments Act, therefore, in the light of the aforesaid facts, one finds undoubtedly that no debt or liability was in existence between the petitioner and the complainant and, therefore, there was no question of the petitioner having issued those two cheques in any purported discharge of any such debt or liability, either in whole or in part. As noticed, the cheques were issued for an entirely different purpose. These were issued to cover the advance payment of a part of the purchase price of the vehicle which ultimately was never, in fact, purchased.
(3.) EXPLANATION to Section 138 of the Act defines a debt or liability to mean a legally enforceable debt or any other liability. What to talk of any legally enforceable debt or liability, in the present case, no debt or liability is ever alleged to be in existence and, therefore, there is no question of any discharge of any such debt or liability. Issuance of two cheques by way of advance payment of a part of the purchase price of the vehicle and later on these cheques not being honoured would not, therefore, amount to the commission of an offence under Section 138 of the Act.;