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Supreme Court of India

DON AYENGIA vs STATE OF ASSAM on 28 January, 2016

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Crl.A. No.-000082-000083 - 2016Official PDFBench Tirath Singh Thakur, Kurian JosephAdvocates DIKSHA RAI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 82-83 OF 2016
(Arising out of S.L.P. (Crl.) Nos.4517-4518 of 2014)
Don Ayengia …Appellant
Versus
The State of Assam & Anr. …Respondents
JUDGMENT JUDGMENT
T.S. THAKUR, J.
1. Leave granted.
2. These appeals arise out of a judgment and order dated 2nd
April, 2014 passed by the High Court of Assam, Nagaland,
Mizoram and Arunachal Pradesh at Guwahati in Criminal Appeal
No.10 and Criminal Revision No.41 both of the year 2012
whereby the High Court has allowed the Criminal Revision
No.41 of 2012 and set aside the conviction of respondent
Haren Mudoi under Section 138 of the Negotiable Instruments
Act, 1881 and dismissed Criminal Appeal No.10 of 2012 filed
by the Complainant/Appellant.
3. The Complainant/Appellant in these appeals is a partner

Complainant/Appellant herein were actually issued by him and

agreeing that the same may be presented for payment after

25th September, 2007. The endorsement was in the following

manner:

“The above cheques are issued by me to

Nazimul Islam to deliver to Mr. Don Ayengia the

cheques are already been bounce. Now, we have

requested Mr. Dona Ayengia to represent the

cheques after 25.09.2007 to contact me.

15.09.2007

(H.Mudoi)”

10. It is not in dispute that the execution of the Promissory

Note and the endorsement made by the Respondent has been

satisfactorily proved at the trial. Concurrent findings recorded

by the trial court and the first appellate court to that effect

conclude the factual part of the controversy. The only question

that survives in the above background is whether the cheques

issued by the Respondent were meant to discharge, in whole or

part, “any debt or other liability” within the meaning of Section

138 of the Negotiable Instruments Act, 1881.

11. We have no hesitation in answering that question in the

affirmative. The facts as narrated above and as held proved by

the trial Court and the appellate court, leave no manner of JUDGMENT doubt, that Nazimul Islam had received an amount of rupees

ten lakhs from the complainant in connection with the

agreement executed between the two. It is also not in dispute

that upon termination of the agreement, the amount paid to

Nazimul Islam was refundable to the complainant and that

Nazimul Islam had agreed to refund the same within one

month. The promissory note executed by Nazimul Islam

contained an unequivocal acknowledgment of not only the

debt/liability aforementioned but promised to liquidate the

same within one month with interest at the bank rate. Five

cheques handed over were to be returned but only upon

payment of the amount in question. Such being the fact

situation, it cannot be said that the cheques had nothing to do

with any debt or other liability. As a matter of fact, the

existence of the debt or liability was never in dispute. On the

contrary, it was acknowledged by Nazimul Islam who simply

sought one month’s time to pay up the amount. The cheques

were post dated, only to give to the drawer the specified one

month’s time to pay the amount. There is thus a direct

relationship between the liability and the cheques issued in

connection therewith. Thus far there is no difficulty. The JUDGMENT difficulty arises only because the promissory note uses the

words “security” qua the cheques. This would ordinarily and in

the context in which the cheques were given imply that once

the amount of rupees ten lakhs was paid, the cheques shall

have to be returned. There would be no reason for their

retention by the complainant or for their presentation. In case,

however, the amount was not paid within the period stipulated,

the cheques were liable to be presented for otherwise there

was no logic or reason for their having been issued and handed

over in the first instance. If non-payment of the agreed

debt/liability within the time specified also did not entitle the

holder to present the cheques for payment, the issue and

delivery of any such cheques would be meaningless and futile if

not absurd. It is important to note that it was not a case

where no debt or liability was determined or acknowledged to

be payable. If cheques were issued in relation to a continuing

contract or business where no claim is made on the date of the

issue nor any determinate amount payable to the holder, one

could perhaps argue that the cheques cannot be presented or

prosecution launched on a unilateral claim of any debt or

liability. The present is, however, a case where the existence JUDGMENT of the debt/liability was never in dispute. It was on the

contrary acknowledged and a promise was made to liquidate

the same within one month. Failure on the part of the debtor

to do so could lead to only one result, viz. presentation of the

cheques for payment and in the event of dishonour, launch of

prosecution as has indeed happened in the case at hand.

12. The argument that the respondent had no liability to

liquidate the debt owed by Nazimul Islam, has not impressed

us. What is important is whether the cheques were supported

by consideration. Besides the fact that there is a presumption

that a negotiable instrument is supported by consideration

there was no dispute that such a consideration existed in as

much as the cheques were issued in connection with the

discharge of the outstanding liability against Nazimul Islam. At

any rate the endorsement made by the respondent on the

promissory note that the cheques can be presented for

encashment after 25-09-2007 clearly shows that the cheques

issued by him were not ornamental but were meant to be

presented if the amount in question was not paid within the

extended period. The High Court in our view fell in error in

upsetting the conviction recorded by the Courts below who had JUDGMENT correctly analysed the factual situation and applied the law

applicable to the same.

13. In the result, we allow these appeals and set aside the

order passed by the High Court to the extent it allowed

Criminal Revision No.41 of 2012 filed by the respondent.

Consequently the order passed by the appellate court shall

stand restored. We, however, do not see any reason to

interfere with the order passed by the High Court to the extent

it dismissed Criminal Appeal No.10 of 2012. No costs.

(KURIAN JOSEPH) New Delhi January 28, 2016