Sahjad Ahmad vs State of Uttarakhand and Another

Servesh Kumar Gupta, J.—By way of this criminal application, the prayer has been advanced to quash the entire proceedings of criminal complaint case No. 194 of 2007, Brijesh Virmani v. Sahjad Ahmad, pending in the court of IInd Special Judicial Magistrate, Dehradun as well as the order of cognizance dated 1.8.2003 passed therein.

It is pertinent to mention that this Court has given hearing to the leaned counsel for the applicant, while none turns up on behalf of opposite party No. 2, despite of sufficient service.

Having heard the controversy in question, it comes out that the applicant-Sahjad Ahmad issued a cheque of Rs. 2.00 lacs on dated 4.2.2002 to Brijesh Virmani (opposite party No. 2). When Sri Virmani submitted that cheque to the bank for payment, it was dishonoured by the Bank with the remark "referred to drawer". Sri Virmani issued a notice to Sri Sahjad Ahmed on dated 22.3.2002 within the time stipulated under the provisions of the Negotiable Instruments Act, 1881 {hereinafter will be referred as the Act}, asking him to make the payment. In that notice, Sri Virmani stated the cause of returning of the cheque to him by the Bank. The notice sent by Sri Virmani discloses the cause of return of the unpaid cheque endorsed in the memo, sent by the bank "referred to drawer". After receipt of the notice when the amount was not paid, then Sri Virmani filed a complaint on dated 29.4.2002 within the time prescribed u/s 138 of the Act r/w Section 420 of Indian Penal Code. The learned Magistrate after recording the statement of the complainant u/s 200 Code of Criminal Procedure and relying upon other documentary evidence, took cognizance in the matter and passed the impugned order dated 1.8.2003, summoning Sri Sahjad Ahmad to stand for trial for the offence u/s 138 of the Act only.

Learned Counsel of the applicant has argued that the provision of Section 138 of the Act can be invoked only when the cheque is returned to the Drawee for the reason of insufficiency of fund. He also argued that the Hon''ble Apex Court has also enhanced the scope of this offence for two reasons more, and those are, closure of account by the Drawer after issuing the cheque or if he issues the instructions to the bank for stopping of payment of the cheque. The cause wherefore the cheque returned to the Drawee, is not covered in either of the above grounds, as it was simply not honoured with the remark "referred to drawer". Learned Counsel also relied upon a precedent of the Hon''ble Apex Court in the case of "Jugesh Sehgal v. Shamsher Singh Negi reported in (2010) 2 SCC (Cri) 218", wherein it was held that all the ingredients u/s 138 of the Act, which are required to constitute the offences, are of cumulative nature and effect. Being so, all ingredients need to be satisfied before a person who had drawn the cheque, can be deemed to have committed the offence u/s 138 of the Act.

Another precedent cited on behalf of the applicant is of Karnataka High Court in the case of "B. Krishna Reddy v. B.K. Somashekara Reddy reported in 2006 Cri. L.J. (NOC) 452 (Kar.)", wherein it was specifically held that where the Bank returns the cheque with an acknowledgment "referred to the drawer", then in such cases, cheque will be deemed to have become void in law- Accused cannot be prosecuted for the offence u/s 138 of the Act.

In view of the above, this Court is also of the view that No. offence u/s 138 of the Act is made out against the applicant Sahjad Ahmad. This petition has got merit and deserves to be allowed.

Petition is, accordingly, allowed. Impugned order of cognizance dated 1.8.2003 as well as the complaint case No. 194 of 2007, aforetitled, are hereby quashed.