{"id":270383,"date":"2003-03-07T00:00:00","date_gmt":"2003-03-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/goaplast-pvt-ltd-vs-shri-chico-ursula-dsouza-anr-on-7-march-2003"},"modified":"2018-10-09T18:54:08","modified_gmt":"2018-10-09T13:24:08","slug":"goaplast-pvt-ltd-vs-shri-chico-ursula-dsouza-anr-on-7-march-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/goaplast-pvt-ltd-vs-shri-chico-ursula-dsouza-anr-on-7-march-2003","title":{"rendered":"Goaplast Pvt. Ltd vs Shri Chico Ursula D’Souza & Anr on 7 March, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Goaplast Pvt. Ltd vs Shri Chico Ursula D’Souza & Anr on 7 March, 2003<\/div>\n
Author: A Kumar<\/div>\n
Bench: M.B. Shah, Arun Kumar<\/div>\n
           CASE NO.:\nAppeal (crl.)   of 2003\n\nPETITIONER:\nGoaplast Pvt. Ltd.\n\nRESPONDENT:\nShri Chico Ursula D'Souza & Anr.\n\nDATE OF JUDGMENT: 07\/03\/2003\n\nBENCH:\nM.B. SHAH &  ARUN KUMAR\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
(Arising out of SLP (Crl.) 2742\/02)<\/p>\n
With Criminal Appeals No.____________________of 2003
\n(Arising out of SLP(Crl.) No.3844\/2002, SLP(Crl.) No.3907\/2002,
\nSLP(Crl.) No.3937\/2002, SLP(Crl.) 3940\/2002, SLP(Crl.)
\nNo.3944\/2002 and SLP(Crl.)No.3950\/2002)_________________<\/p>\n
ARUN KUMAR, J.\n<\/p>\n
\tLeave granted in all the appeals.\n<\/p>\n
\tThese appeals involve a pure question of law as to
\napplicability of Section 138<\/a> of the Negotiable Instruments
\nAct, 1881 (hereinafter referred to as “Act”) to a case in which
\na person issuing a post dated cheque stops its payment by
\nissuing instructions to the drawee bank before the due date
\nof payment.  The facts involved in all the appeals are almost
\nsimilar except variations in dates and amounts of cheques
\ninvolved in each case.\tFor purpose of this judgment we
\nhave taken the facts in Criminal Appeal
\nNo._________\/2003(arising out of SLP(Crl.)2742\/2002.  The
\nfacts are in a very narrow compass. Respondent No.1
\naddressed a letter to the appellant on 20th July, 1992
\nenclosing therewith ten post-dated cheques, each for an
\namount of Rs.40,000\/- by way of refund of amount due from
\nhim to the appellant.  The two cheques subject matter of the
\npresent appeal were dated 10.12.1994 and 10.4.1995.  On
\n12th February, 1993 respondent No.1 again wrote to the
\nappellant denying his liability to pay the amount under the
\naforesaid cheques on the ground that they were issued
\nunder a mistaken belief of liability and asked the appellant to
\ntreat the cheques as invalid.  Respondent No.1 also wrote to
\nthe drawee Bank on 15th March, 1993 to stop payment of the
\naforesaid post-dated cheques issued by him.  On 10th May,
\n1995, the appellant presented the two cheques dated
\n10.12.1994 and 10.4.1995 for payment but the said cheques
\nwere returned unpaid with the endorsement “present again”
\non 12.5.1995.  On 24th May, 1995 the appellant issued
\nnotice under\tSection 138B<\/a> of the Act\t demanding payment
\nof the amount of Rs.80,000\/- i.e. the total amount of the two
\ncheques.  On failure of the respondent No.1 to make the
\npayment in pursuance to the notice, the appellant filed a
\ncomplaint under Section 138<\/a> of the Act on 7th July, 1995.
\nThe concerned Magistrate dismissed the complaint vide
\norder dated 18th October, 1999, taking the view that Section
\n138<\/a> of the Act was not attracted in these facts.  The
\nappellant filed an appeal against the said order of the
\nMagistrate. The Goa Bench of the Bombay High Court
\ndismissed the appeal on 16th March, 2002 upholding the
\nview of the learned Judicial Magistrate.  Both the courts
\nprimarily based their decision on a misreading of the
\njudgment of this Court in Anil Kumar Sawhney vs. Gulshan
\nRai<\/a> [ 1993 (4) SCC 424].  They took the view that the
\naccused had only countermanded a bill of exchange on the
\ndate the accused wrote the letter about stopping payment of
\nthe cheques. Before the due date the instruments were
\nmerely bills of exchange and not cheques.  Therefore, no
\noffence could be said to have been made out under Section
\n138<\/a> of the Act.\t According to the courts below the payment
\nhad been stopped before the cheques became payable.
\n\tThe learned counsel for the appellant has submitted
\nthat mere writing of letter to the Bank stopping payment of
\nthe post-dated cheques does not take the case out of the
\npurview of the Act.  He has invited our attention to the object
\nbehind the provision contained in Chapter XVII of the Act.
\nFor appreciating the issue involved in the present case, it is
\nnecessary to refer to the object behind introduction of
\nChapter XVII containing Sections 138<\/a> to 142<\/a>.  This Chapter
\nwas introduced in the Act by the Banking, Public Financial
\nInstitutions and Negotiable Instruments Laws (Amendment)
\nAct<\/a>, 1988 (Acts 66 of 1998) with the object of inculcating
\nfaith in the efficacy of banking operations and giving
\ncredibility to negotiable instruments in business transactions
\nand in order to promote efficacy of banking operations.\t With
\nthe policy of liberalisation adopted by the country which
\nbrought about increase in international trade and commerce,
\nit became necessary to inculcate faith in banking.  World
\ntrade is carried through banking operations rather than cash
\ntransactions.  The amendment was intended to create an
\natmosphere of faith and reliance on banking system.
\nTherefore, while considering the question of applicability of
\nSection 138<\/a> of the Act to a situation presented by the facts of
\nthe present case, it is necessary to keep the objects of the
\nlegislation in mind.  If a party is allowed to use a cheque as a
\nmode of deferred payment and the payee of the cheque on
\nthe faith that he will get his payment on the due date accepts
\nsuch deferred payment by way of cheque, he should not
\nnormally suffer on account of non payment.  The faith, which
\nthe legislature has desired that such instruments should
\ninspire in commercial transactions would be completely lost
\nif parties are as a matter of routine allowed to interdict
\npayment by issuing instruction to banks to stop payment of
\ncheques.  In today’s world where use of cash in day to day
\nlife is almost getting extinct and people are using negotiable
\ninstruments in commercial transactions and plastic money
\nfor their daily needs as consumers, it is all the more
\nnecessary that people’s faith in such instruments should be
\nstrengthened rather than weakened.  Provisions contained in
\nSections 138<\/a> to 142<\/a> of the Act are intended to discourage
\npeople from not honouring their commitments by way of
\npayment through cheques.  It is desirable that the court
\nshould ban in favour of an interpretation which serves the
\nobject of the statute.\tThe penal provisions contained in
\nSections 138<\/a> to 142<\/a> of the Act are intended to ensure that
\nobligations undertaken by issuing cheques as a mode of
\npayment are honoured.  A post-dated cheque will lose its
\ncredibility and accepatibility if its payment can be stopped
\nroutinely.  A cheque is a well recognized mode of payment
\nand post-dated cheques are often used in various
\ntransactions in daily life.  The purpose of a post-dated
\ncheque is to provide some accommodation to the drawer of
\nthe cheque.  Therefore, it is all the more necessary that the
\ndrawer of the cheque should not be allowed to abuse the
\naccommodation given to him by a creditor by way of
\nacceptance of post-dated cheque.  If stoppage of payment of
\na post-dated cheque is permitted to take the case out of the
\npurview of Seciton 138 of the Act, it will amount to allowing
\nthe party to take advantage of his own wrong.
\n\tThe present case was decided by courts below mainly
\non the basis of the judgment of this Court in Sawhney’s
\ncase (supra).  In that case this court noted that a cheque
\nunder Section 6<\/a> of the Act is a bill of exchange drawn on a
\nbanker and is payable on demand.  From this it follows that a
\nbill of exchange though drawn on a banker, if not payable on
\ndemand is not a cheque.\t A post-dated cheque is only a bill
\nof exchange when it is written or drawn. It becomes a
\ncheque when it is payble on demand.  It is not payable till the
\ndate which is shown on the face of the document.  It will
\nbecome a cheque only on the date shown on it, prior to that
\nit remains a bill of exchange. In Sawhney’s case this Court
\nwas concerned with the question of limitation as provided in
\nproviso (a) to Section 138<\/a> of the Act.\tThis proviso requires
\nthat a cheque should be presented to the Bank within a
\nperiod of six months from the date on which it is drawn or
\nwithin the period of its validity, whichever is earlier.  The
\ncheques in question in Sawhney’s case (supra) were dated
\n15.12.1991 and 15.5.1991 totalling an amount of
\nRs.5,00,000\/-.\tThese cheques were returned by the Banker
\nwith the endorsement “not arranged for\tno fund”.  The
\npayee thereafter issued notice as contemplated under
\nSection 138<\/a> of the Act followed by complaint under Section
\n138<\/a> being filed in the Court of the Chief Judicial Magistrate
\nat Karnal.  It appears from the judgment that these cheques
\nwere handed over to the payee in a settlement arrived at in a
\ncourt case on 5th March, 1990.\tThe question for
\nconsideration was as to the date on which the cheques in
\nquestion could be taken as drawn, in other words, what is
\nthe starting point of limitation of six months provided in
\nproviso (a) to Section 138<\/a> of the Act.\tAccording to the
\ndrawer the cheques were drawn in March, 1990 when they
\nwere written and handed over to the payee.  The cheques
\nwere post-dated and bore the dates mentioned hereinbefore.
\nProviso (a) to Section 138<\/a> uses the words “the date on which
\nit is drawn”.  The cheques were drawn in March, 1990 and
\nwere presented for encashment in the year 1991 which was
\nbeyond the period of six months provided in proviso (a) to
\nSection 138<\/a> and therefore, no offence was said to be made
\nout under Section 138<\/a>.\tKeeping in view the object of Section
\n138<\/a> i.e.  to enhance the acceptability of cheques by making
\nthe drawer liable for penalty in case the cheque is
\ndishonoured, it was felt that drawer of a post-dated cheque
\ncould defeat Section 138<\/a> of the Act by showing a date
\nbeyond six months of its delivery.  An interpretation which
\nsupports the object of the provision had to be adopted.
\nTherefore, it was held that a post dated cheque for purpose
\nof clause (a) of the provision to section 138<\/a> has to be
\nconsidered to have been drawn on the date it bears.  On the
\nbasis of Sections 5<\/a> and 6<\/a> of the Act, it was observed that
\n“post-dated cheque is only a bill of exchange when it is
\nwritten or drawn, it becomes a cheque when it is payable on
\ndemand.\t The post-dated cheque is not payable till the date
\nwhich is shown on the face of the document.  It will only
\nbecome cheque on the date shown on it and prior to that it
\nremains a bill of exchange under Section 5<\/a> of the Act.\tAs a
\nbill of exchange a post-dated cheque remains negotiable but
\nit will not become a cheque till the date when it becomes
\npayable on demand.”  The ratio of the decision in
\nSawhney’s case is found in the following words:\n<\/p>\n
“One of the main ingredients of the
\noffence under Section 138<\/a> of the Act is,
\nthe return of the cheque by the bank
\nunpaid.\t Till the time the cheque is
\nreturned by the bank unpaid, no offence
\nunder Section 138<\/a> is made out.\tA
\npostdated cheque cannot be presented
\nbefore the bank and as such the
\nquestion of its return would not arise.\t It
\nis only when the postdated cheque
\nbecomes a “cheque”, with effect from
\nthe date shown on the face of the said
\ncheque, the provisions of Section 138<\/a>
\ncome into play.\t The net result is that a
\npostdated cheque remains a bill of
\nexchange till the date written on it.  With
\neffect from the date shown on the face
\nof the said cheque it becomes a
\n“cheque” under the Act and the
\nprovisions of Section 138(a)<\/a> would
\nsquarely be attracted.\tIn the present
\ncase the postdated cheques were drwn
\nin March 1990 but they became
\n“cheques” in the year 1991 on the dates
\nshown therein.\tThe period of six
\nmonths, therefore, has to be reckoned
\nfrom the dates mentioned on the face of
\nthe cheques.”\n<\/p>\n
\tFrom the above it will be seen that in Sawhney’s case
\nthe point for consideration was the date from which the
\nperiod of six months provided in proviso (a) to Section 138<\/a>
\nshould be counted.  The Court clearly held that a post-dated
\ncheque becomes a cheque only on the date it bears when it
\nbecomes payable on demand, and therefore, limitation will
\nstart from that date.\n<\/p>\n
In the present case the issue is very different.  The
\nissue is regarding payment of a post-dated cheque being
\ncountermanded before the date mentioned on the face of the
\ncheque.\t For purpose of considering the issue, it is relevant
\nto see Section 139<\/a> of the Act which creates a presumption in
\nfavour of the holder of a cheque.  The said Section provides
\nthat “it shall be presumed that, unless the contrary is proved,
\nthat the holder of a cheque received the cheque of the
\nnature referred to in Section 138<\/a> for the discharge, in whole
\nor in part, or any debt or other liability”.  Thus it has to be
\npresumed that a cheque is issued in discharge of any debt
\nor other liability.  The presumption can be rebutted by
\nadducing evidence and the burden of proof is on the person
\nwho wants to rebut the presumption.  This presumption
\ncoupled with the object of Chapter XVII of the Act which is to
\npromote the efficacy of banking operation and to ensure
\ncredibility in business transactions through banks persuades
\nus to take a view that by countermanding payment of post-
\ndated cheque, a party should not be allowed to get away
\nfrom the penal provision of Section 138<\/a> of the Act.  A
\ncontrary view would render Section 138<\/a> a dead letter and will
\nprovide a handle to persons trying to avoid payment under
\nlegal obligations undertaken by them through their own acts
\nwhich in other words can be said to be taking advantage of
\none’s own wrong.  If we hold otherwise, by giving
\ninstructions to banks to stop payment of a cheque after
\nissuing the same against a debt or liability, a drawer will
\neasily avoid penal consequences under Section 138<\/a>.  Once
\na cheque is issued by a drawer, a presumption under
\nSection 139<\/a> must follow and merely because the drawer
\nissued notice to the drawee or to the bank for stoppage of
\npayment it will not preclude an action under Section 138<\/a> of
\nthe Act by the drawee or the holder of the cheque in due
\ncourse.\t This was the view taken by this Court in Modi
\nCements Ltd. vs. Kuchil Kumar Nandi<\/a> [1998 (3) SCC 249].
\nOn same facts is the decision of this Court in Ashok
\nYeshwant Badave vs.  Surendra Madhavrao Nighojakar
\nand another<\/a> [2001 (3) SCC 726]. The decision in Modi’s
\ncase overruled an earlier decision of this Court in
\nElectronics Trade & Technology Development Corpon.
\nLtd. vs. Indian Technologists & Engineers<\/a> [AIR 1996 SC
\n2339] which had taken a contrary view.\tWe are in respectful
\nagreement with the view taken in Modi’s case.  The said
\nview is in consonance with the object of the legislation.  On
\nthe faith of payment by way of a post-dated cheque, the
\npayee alters his position by accepting the cheque.  If
\nstoppage of payment before the due date of the cheque is
\nallowed to take the transaction out of the purview of Section
\n138<\/a> of the Act, it will shake the confidence which a cheque is
\notherwise  intended to inspire regarding payment being
\navailable on the due date.\n<\/p>\n
NEPC Micon Ltd. & Ors. Vs.  Magma Leasing Ltd.
\n[(1999) 4 SCC 253] was a case in which the drawer of the
\ncheque closed the account in the Bank before presentation
\nof the cheque and the cheque when presented was returned
\nby the Bank with the remark “account closed”.  The question
\narose whether in this situation Section 138<\/a> of the Act\twould
\nbe attracted.  It was contended on behalf of the appellant
\nthat Section 138<\/a> being a penal provision it should be strictly
\ninterpreted. Section 138<\/a> according to the appellant applied
\nonly in two situations i.e. either because the money standing
\nto the credit of the account of the drawer is insufficient to
\nhonour the cheque or it exceeds the amount arranged to be
\npaid from that account by an agreement made with the bank.
\nRejecting the contentions raised on behalf of the accused
\nthis Court held that return of a cheque on account of account
\nbeing closed would be similar to a situation where the
\ncheque is returned on account of insufficiency of funds in the
\naccount of the drawer of the cheque.  Before one closes his
\naccount in the Bank he withdraws the entire amount
\nstanding to credit in the account.  Withdrawal of the entire
\namount would therefore mean that there were no funds in
\nthe account to honour the cheque which squarely brings the
\ncase within Section 138<\/a> of the Act. On the question of strict
\ninterpretation of penal provisions raised on behalf of the
\naccused it was observed: “If the interpretation, which is
\nsought for, were given, then it would only encourage,
\ndishonest persons to issue cheques and before presentation
\nof the cheques, close the account and thereby escape from
\nthe penal consequences of Section 138<\/a>.”\t Any interpretation
\nwhich withdraws the life and blood of the provision and
\nmakes it ineffective and a dead letter, should be averted. It is
\nthe duty of the court to interpret the provision consistent with
\nthe legislative intent and purpose so as to suppress the
\nmischief and advance the remedy.  The legislative purpose
\nis to permit the efficacy of banking and of ensuring that in
\ncommercial or contractual transactions, cheques are not
\ndishonoured and credibility in transacting business through
\nbanks is maintained.  The Court relied upon its earlier
\njudgment in  Modi Cement Ltd.(supra).  We would like to
\nquote the following observations t contained in NEPC Micon
\nLtd. & Ors. Vs. Magma Leasing Ltd. (supra).
\n“15. ” In view of the aforesaid discussion we are of
\nthe opinion that even though section 138<\/a> is a penal
\nstatute, it is the duty of the court to interpret it
\nconsistent with the legislative intent and purpose so
\nas to suppress the mischief and advance the
\nremedy.\t As stated above, Section 138<\/a> of the Act has
\ncreated a contractual breach as an offence and the
\nlegislative purpose is to promote efficacy of banking
\nand of ensuring that in commercial or contractual
\ntransactions cheques are not dishonoured and
\ncredibility in transacting business through cheques is
\nmaintained.  The above interpretation would be in
\naccordance with the principle of interpretation quoted
\nabove “brush away the cobweb varnish, and shew
\nthe transactions in their true light” (Wilmot, C.J.) or,
\n(by Maxwell) “to carry out effectively the breach of
\nthe statute, it must be so construed as to defeat all
\nattempts to do, or avoid doing, in an indirect or
\ncircuitous manner that which it has prohibited.”
\nHence, when the cheque is returned by a bank with
\nan endorsement “account closed”, it would amount to
\nreturning the cheque unpaid because “the amount of
\nmoney standing to the credit of that account is
\ninsufficient to honour the cheque” as envisaged in
\nSection 138<\/a> of the Act.”\n<\/p>\n
We are unable to agree with the reasoning adopted by
\nthe courts below.  The impugned judgments of the High
\nCourt and the Judicial Magistrate, Ist Class, Panaji, Goa are
\nset aside. We hold that Section 138<\/a> of the Negotiable
\nInstruments Act will be attracted in the facts of the case.
\nHowever, whether a case for punishment under that
\nprovision is made out, will depend on outcome of the trial.
\nThe cases are remanded to the concerned Judicial
\nMagistrate for deciding the complaints filed by the appellant
\nherein on merits in accordance with law.  All the appeals are
\nallowed.  Nothing contained in this judgment be taken as
\nexpression of opinion on merits.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Goaplast Pvt. Ltd vs Shri Chico Ursula D’Souza & Anr on 7 March, 2003 Author: A Kumar Bench: M.B. Shah, Arun Kumar CASE NO.: Appeal (crl.) of 2003 PETITIONER: Goaplast Pvt. Ltd. RESPONDENT: Shri Chico Ursula D’Souza & Anr. DATE OF JUDGMENT: 07\/03\/2003 BENCH: M.B. SHAH & ARUN KUMAR JUDGMENT: JUDGMENT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-270383","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGoaplast Pvt. 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