Shri Kali Indane Gas Agency and Sri Sunil Hegpe vs T.M. Sundaresh

K.N. Keshavanarayana, J.—In this petition filed u/s 482 Code of Criminal Procedure the Petitioner has sought for quashing the proceedings initiated against him in CC No. 968/09 on the file of Civil Judge (Jr. Dn.) and JMFC at Tiptur, for the offence punishable u/s 138 of N.I. Act.

The Respondent complainant has filed a complaint against the Petitioner alleging offence punishable u/s 138 of N.I. Act interalia on the ground that the Petitioner for discharge of legally recoverable debt due by him to the complainant, issued the cheque in question for Rs. 40,00,000/- drawn on Corporation Bank, Haliyal Branch and when the said cheque was presented for presentation, the same was returned unpaid with the bankers'' endorsement that the drawers'' signature differs and inspite of service of notice he has failed to pay the amount covered under the cheque.

On coming to know of the learned Magistrate taking cognizance of the offence alleged in the complaint and ordering issue of summons Petitioner has presented this petition seeking to quash the said proceeding.

I have hard Sri Gowthem Dev C Ullal, learned Counsel appearing for the Petitioner and Sri Badri Vishal, learned Counsel appearing for the Respondents.

It is the submission of Sri Gowthem Dev C Ullal that the reasons for which the cheque was returned unpaid does not fell within the categories mentioned in Section 138, of the N.I. Act, as such, no offence punishable u/s 138 of R.I. Act is committed, therefore the proceedings are liable to be quashed. In support of his contention he sought to place reliance on the decision of the Apex Court in the case of Vinod Tanna and Another Vs. Zaheer Siddiqui and Others, and judgment of this Court in the case of Sri. H. Nanjundappa Vs. Sri. H. Hanumantharayappa, . He also submits that there was absolutely no transaction between the Petitioner and the Respondent-complainant and that the Respondent by making use of a cheque leaf which had landed in his hand, by entering fancy figures, has presented the same by forging the signature of the account holder as such there is no reason to proceed with the prosecution against the Petitioner, therefore it is liable to be quashed.

Far contra the learned Counsel for the Respondent placing reliance on the decision of this Court in Dinesh Harakchand Sankla Vs. Kurlon Ltd. and Others, contended that even if the cheque is dishonored for the reason that the drawers'' signature differs, the proceeding for the offence u/s 138 can be initiated and proceeded with, therefore there are no grounds to quash the proceedings.

I have given my anxious consideration to the submission made on both the sides. It is undisputed that the cheque in question relate to the account held by Petitioner with a Banker and when it was presented for encashment, the same was returned with bankers'' endorsement that the drawers'' signature differs. Therefore, at this stage the only question required to be considered is if a cheque is dishonored for the reason that the drawers'' signature differs, whether it would attract the offence u/s 138 of N.I. Act. In Vinod Tanna''s case referred to supra, the Apex Court was considering the case in which the cheque had been dishonored on the ground that the drawers'' signature was incomplete, and not on the ground that the drawers'' signature differs. Therefore the said decision is not an authority on the question involved in this case. In fact in the decision of this Court relied upon by the learned Counsel for the Petitioner there is an indication that even when the cheque is dishonored on the ground that the signature does not tally with the specimen, it would attract Section 138 of the N.I. Act. In the said case this Court was considering the question as to whether by successive presentation of the cheque, limitation could be saved. White considering that question this Court has held that when the cheque is dishonored for insufficiency of funds, by its successive presentation the drawer would be given an opportunity to make good the funds in the account for honouring the cheque on the successive presentation. However, it has been further observed in the said decision that in the case of account closed or the signature does not tally with the specimen, the question of successive presentation makes no sense because when the account itself not in existence or the signature does not tally with the specimen, there is no possibility of having a fruitful result by successive presentation unlike the insufficiency of funds. The reading of this decision gives an indication that even when the cheque is dishonored on the ground that the drawers'' signature differs, prime facie it would attract the offence u/s 138 of N.I. Act. In Dinesh Harakchand Sankla''s case referred supra this Court has dealt with the very same issue as involved in the case on hand. In this decision, this Court has held that when a cheque is dishonored for the reason that, the signature of the drawer on the cheque differs, still the offence of dishonor of cheque would be made out and proceeding cannot he quashed on that ground. It is further observed in the said decision that where the drawer of the cheque has not paid the amount of unpaid cheque even after service of statutory notice intention of drawer is prima facie clear that he had issued cheque with his altered signature with oblique motive, therefore the presumption that the holder of the cheque received the cheque for discharge, in whole or in part, of any debt or liability still stands.

This decision squarely applies to the facts of the case on hand. In the light of the aforesaid decision I find no merit in the first contention urged by the learned Counsel for the Petitioner. With regard to the second contention, the same has to be established by the Petitioner at the trial and on that ground, proceedings cannot be quashed. Therefore I find no ground to entertain this petition. Accordingly the petition is rejected.