Devendra Singh vs Varinder Singh

N.K. Jain, J.—The order impugned is passed in revision by the XIVth Addl. Sessions Judge, Indore, quashing the charge U/s, 138 or the Negotiable Instruments Act, 1881 (for short, ''the Act''), against the respondent framed by the Judicial Magistrate, First Class. Indore. in Cr. Case No. 275/93.

For the purpose of this petition it is no more in dispute that respondent-accused had issued a cheque for Rs. 65,000/- in favour of the applicant-complainant. On presentation the cheque was returned by the Bank unpaid with the remark that the signature of the drawer do not tally with his specimen signature available with the Bank. As per advise of the respondent-accused, the complainant re-presented the cheque with the Bank, but the same was again resumed unpaid with the similar remark. A demand notice as required by clause (b) of proviso to Sec. 138 of the Act was served on the respondent but the amount still remained unpaid. The complainant, therefore, filed complaint before the Magistrate alleging commission of offence U/s 138 of the Act by the respondent-accused. The learned Magistrate after recording evidence U/ss. 200 & 202 Cr. P.C. took cognizance of the offence against the respondent and on his appearance proceeded to explain particulars of the offence to him U/s 138 of the Act. Aggrieved by the action of the Magistrate the respondent-accused preferred revision before the Sessions Court which was allowed and the complaint against the respondent was quashed vide order impugned thus giving rise to this petition u/s, 482 Cr. P.C.

The learned Addl. Sessions Judge has quashed the complaint mainly on the ground that the cheque in question was not dishonored either because of the amount of money standing to the credit of the account of the drawer is insufficient or that it exceeds the amount arranged to be paid from that account under same agreement with the Bank. Return of cheque on account of non-tally of signatures of the drawer did not, in the opinion of the learned A.S.J.. constitute an offence u/s. 138 of the Act. Reasoning given by the learned A.S.J., in my opinion, is wholly unsustainable in law.

In a recent decision in M/S Modi Cements Limited Vs. Shri Kuchil Kumar Nandi, , the Supreme Court has held.

Once the cheque is issued by the drawer a presumption u/s 139 must follow and merely because the drawer issues a notice to the drawee or to the Bank for stoppage of the payment it will not preclude an action u/s 138 of the Act by the drawee or the holder of a cheque in due course.

In Rakesh Nemkumar Porwal Vs. Narayan Dhondu Joglekar, , High Court of Bombay has held that reasons for dishonor of cheque are wholly irrelevant and cannot be taken into account by a Magistrate when a complaint u/s 138 of the Act is presented. Similar view is taken by Punjab & Haryana High Court in Darshan Lal, 1997 Cri. L.J. 4603.

In the instant case, return of cheque for the second time even after assurance given by the respondent-accused to the complainant and non-payment of money after service of demand notice did prima-facie raises presumption of dishonesty on the part of the accused. Needless to add, the accused drawer will have an opportunity u/s. 139 of the Act to rebut the presumption at the trial. However, the learned A.S.J, was wrong in quashing the complaint at that stage of the trial.

In the result 1 allow the petition, quash the order dated 17.10.95 passed by the XIth Addl. Sessions Judge. Indore. in Cr. Rev. No. 128/93 and direct that the respondent shall stand trial before the Magistrate on the charge u/s. 138 of the Act.

A copy of order along with record of the case be remitted back to the Court below immediately.