Judgment : 1. The Revisions directed against the order passed by the learned Judicial Magistrate-I, Kovilpatti in C.C. No. 305 of 2003 dated 1.4.2005. 2. The petitioner herein lodged a Complaint under 138 of Negotiable Instruments Act against the respondent herein. 3. The prosecution case in brief is as follows : The respondent herein approached the complainant on 18.7.2002 and borrowed a sum of Rs. 1,25,000/- for developing his business and agreed to pay the amount with interest at the rate of 12% p.a. from 18.7.2002. On 18.7.2003, he issued a Mercantile Bank Cheque bearing No. 560027 for a sum of Rs.1,25,000/-. When the petitioner presented the cheque in Canara Bank on 21.7.2003, the cheque was returned dishonored, So, on 4.8.2003, the petitioner issued a notice to the respondent to repay the amount. The respondent received the same on 5.8.2003, and sent a reply with false allegation on 16.8.2003 and hence he cheated the petitioner and committed the offence punishable under Section 138 of the Negotiable Instruments Act. 4. Before the Trial Court P.W.1 was examined and Exs. P. 1 to 7 were marked on behalf of the prosecution and R.W. 1 and R.W. 2 were examined on behalf on the accused. 5. On consideration of the materials available on record, the learned Judicial Magistrate-I, Kovilpatti came to a conclusion that the offence was maintainable only under Section 420 I.P.C. and passed the following order : 6. Challenging the said judgment, the petitioner has approached this Court by filing the present Revision Case. 7. The point for consideration is : Whether the judgment of the Trial Court is sustainable. 8. The point: According to the learned counsel for the petitioner, the respondent issued a cheque for the amount of Rs. 1,25,000/- borrowed by him and when presented in the Bank, the same was dishonored and thus he has committed the offence punishable under Section 138 of Negotiable Instruments Act. But the trial Magistrate without appreciating the materials in a proper perspective, has come to a wrong conclusion and altered the offence under Section 138 of Negotiable Instruments Act into Section 420 I.P.C. even without notice to the petitioner and on this ground, the order of the learned Judicial Magistrate-I, is liable to be set aside. 9. But the trial Magistrate without appreciating the materials in a proper perspective, has come to a wrong conclusion and altered the offence under Section 138 of Negotiable Instruments Act into Section 420 I.P.C. even without notice to the petitioner and on this ground, the order of the learned Judicial Magistrate-I, is liable to be set aside. 9. To substantiate his case, learned counsel for the petitioner relied on the following judgments : (i) NEPC Micon Ltd. and others v. Magna Leasing Ltd., (1999) Crl.L.J. 2883. (ii) Jaspal Singh Bedi v. State of Punjab and another, 2005 Crl. L.J. 1061. (iii) Hashmikan M. Sheth v. State of Gujarat and another, 2004 Crl. L.J. 3628. (iv) P. N. Salim v. P. J. Thomas and another, 2004 Crl. L.J. 3096. (v) G. Venkataramaiah v. Sillakollu Venkateswarlu and another, 1999 Crl. L.J. 1219. 10. Learned counsel for the petitioner relied on NEPC Micon Ltd. and others v. Magna Leasing Ltd. , ( supra) and argued that though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and the dishonour of the cheque by a Bank on the ground that account is closed would also the offence coming under Section 138 of Negotiable Instruments Act. In the above said decision, it was held as follows: “Even though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. Section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonored and credibility in transacting business through cheques is maintained.” 11. Learned counsel further relied on the decision in Jaspal Singh Bedi v. State of Punjab and another ( supra) and argued that issuance of cheque on an account that had been closed would not absolve the accused of criminal liability under Section 138 of the Act. Learned counsel further relied on the decision in Jaspal Singh Bedi v. State of Punjab and another ( supra) and argued that issuance of cheque on an account that had been closed would not absolve the accused of criminal liability under Section 138 of the Act. In the said decision, it was held as follows: “Negotiable Instruments Act (26 of 1881) Section 138 - dishonour of cheque Drawing of cheque on an account that had been closed would not absolve accused of criminal liability.” In this case also the learned counsel for the petitioner submitted that the account of the respondent was already closed and then only the cheque was issued by the respondent. So, this case would attract only the offence under Section 138 of the Negotiable Instruments Act. 12. Learned counsel for the petitioner took the aid of the decision in Hashmikant M. Sheth v. State of Gujarat and another , ( supra) and argued that even if the cheque issued after the closure of account is dishonored, it would attract the offence in terms of Section 138, N.I. Act. In the said decision, it was held as follows: “The offence in terms of Section 138 would stand committed even of cheque issued after closure of account is dishonored because the amount of money standing to the credit of ‘that account would be ‘nil’ at the relevant time apart from it being closed. Therefore it can not be said that after closure of the account maintained by the drawer if cheque was issued, no offence in terms of Section 138 made out.” 13. Learned counsel in support of his contention further relied on the decision in P. N. Salim v. P. J. Thomas and another , ( supra) and argued that the cheque issued after the date of closure of account would fall with the sweep of Section 138 N.I. Act. In the above said decision, it was held as follows : “The expression ‘an account maintained by him’ in Section 138 must necessarily take in account (that was) maintained by him (account holder) as also an account (that is) maintained by him. In the above said decision, it was held as follows : “The expression ‘an account maintained by him’ in Section 138 must necessarily take in account (that was) maintained by him (account holder) as also an account (that is) maintained by him. A person like the accused in the instant case who closes the account with his bank but retains unused cheque leaves with him without surrendering the same to the bank must certainly be held to continue to maintain the account at least for the purpose of Section 138 of the N.I. Act, notwithstanding the fact that he had instructed his bank to close the account. It is the duty of every bank and every customer to insist and ensure that all unused cheque leaves are returned to the bank before the account maintained by account holder is closed. Only when that happens it can be held that he has ceased to maintain the account with the bank.” In this case, the cheque was issued only after the closure of the account, which will amount to attract the Section 138 of the Negotiable Instruments Act. 14. Learned counsel for the petitioner further relied on G. Venkataramaiah v. Sillakollu Venkateswarlu and another, ( supra) and argued that bouncing of cheque as account closed, would also amount to the offence under Section 138 of the Negotiable Instruments Act. In the said decision, it was held as follows: “The object of the Negotiable Instruments Act makes it clear that the intent of Parliament was that honest drawer should not suffer at the mechanization of dishonest drawee. Intention of the drawee becomes important. Thus where cheque was returned on ground that account was closed prior to issuance of cheque, it must be held that offence under Section 138 is committed. Because, once an account is closed after cheque is given and the cheque is returned back on a account of closure of account, it would in effect mean insufficiency of funds in the account of the persons who gave the cheque. The interpretation that offence is committed either because of amount standing to the credit of that account is insufficient or that it exceeds the amount and not otherwise if accepted will render whole legislation useless. The interpretation that offence is committed either because of amount standing to the credit of that account is insufficient or that it exceeds the amount and not otherwise if accepted will render whole legislation useless. A dishonest person after issuing a cheque or even before issuing a cheque (as in this case) can anytime at his own will close the account and in such a situation Section 138 shall become in effect inoperative. This has not been the intention of the Parliament.” The intention of the parliament was explained in that case. In this case also after the closure of the account, cheque was issued by the respondent herein. The principle laid down in the above said case is applicable to this case. 15. In the right of the above said decisions, I am of the view that when the cheque is returned by a bank with an endorsement ‘account closed‘, it would amount to returning the cheque unpaid because ‘the amount of money standing to the credit of that account is insufficient to honour the cheque’ as envisaged in Section 138 of the Act. So, this would only attract the offence under Section 138 of the Negotiable Instruments Act and therefore the order of the learned Judicial Magistrate-I, Kovilpatti, altering the offence punishable under Section 138, N.I. Act into 420, I.P.C. is not correct and the same is liable to be set aside. 16. Further the learned Judicial Magistrate I, Kovilpatti, has not issued any notice to the petitioner before pronouncing the order. On that ground also the order of the learned Magistrate is liable to be set aside. 17. In the result, this Revision is allowed and the order passed by the learned Judicial Magistrate - I, Kovilpatti in C.C. No. 305 of 2003 dated 1.4.2005 is set aside.