K.T.Thomas, J.:-
(1) appellant was the complainant in the lower court. He filed this appeal in challenge of the order of acquittal of the respondent of the offence under section 138 of the negotiable instruments act (for short the act).
(2) appellant filed the complaint in the lower court based on ext. P1 cheque (for rs. 56,000/ - dated 3. 1 0. 1990) which was issued by the respondent. When the cheque was presented for encashment it was returned unpaid by the bank concerned on the ground payment stopped. Complainant then issued a notice to which respondent sent a reply. As the respondent failed to pay the amount within fifteen days of receipt of notice, Complaint was filed in the lower court. After taking evidence lower court acquitted the respondent.
(3) the stand of the respondent in the lower court is this: respondent did not owe any liability or debt to the complainant. However one mohammad yunus (d. W. 1) owed some money to the complainant. As d. W. 1 was in impecunious condition and as the complainant insisted on repayment of the debt, Respondent went to the rescue of d. W. 1 and issued the cheque.
(4) learned magistrate found that d. W. Its story is true and hence he expressed the opinion that since respondent did not owe any debt or liability to the complainant, Section 138 of the act is not attracted. It was on the said premise that respondent was acquired.
(5) learned counsel for the appellant contended that even if the defence version is accepted respondent cannot escape from section 138 of the act. The section deals with a cheque drawn by a person for the discharge, In whole or in part, Of any debt or other liability. T the section does not say that the cheque should have been drawn for the discharge of any debt or other liability of the drawer towards the payee. If the intention of the parliament was otherwise the words of any debt or other liability would have been further qualified by adding the words of the drawer. Even in section 139 of the act, By which a legal presumption is created parliament has only fixed the presumption that the cheque was received for the discharge, In whole or in part, Of any debt or other liability. This means, The debt or other liability may be due from any person. It is not necessary that the debt or liability should be due from the drawer.
(6) as the object of the legislature in bringing forth a new provision like section 138 is to enhance the credibility or acceptability of cheques, It is immaterial that the cheque was issued for discharge of his own debt or liability. It can issued for discharge of another mans debt or liability
(7) a single judge of the madras high court has taken the same view. Vide krishna bai v. Arti press. The following observations of padmini jesudurai, J. Are useful in this context. The debt or liability towards which the cheque is issued, Should be a legally enforceable debt or liability. This would have reference to nature of the debt or liability and not to the person against whom the debt or liability could be enforced. This is clear by use of words any debt or liability which would include a cheque drawn by one person towards a legal enforceable debt or liability of another person. The significant omission of the words debt or other liability of that person (emphasis supplied) after the words any debt or liability would indicate the intention of the parliament. I am in respectful agreement with the aforesaid observations.
(8) learned counsel for the respondent then contended that even if such a view is adopted the complainant cannot succeed as the cheque was returned due to the fact that payment was stopped by the drawer and that is not one of the grounds which could constitute the offence under section 138 of the act. Since the said argument was not addressed before the trial court that point has to be considered by the trial court.
(9) i, Therefore, Set aside the order of acquittal and remit the case to the trial court for disposal of the case afresh on the evidence already on record. Cr1. Appeal is accordingly disposed of. Appeal allowed