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Madhya Pradesh High Court · body

2009 DIGILAW 1105 (MP)

Rajkumar Shukla v. Subodh Agrahari

2009-09-08

S.C.SINHO

body2009
ORDER 1. Applicant/accused has filed this petition under Section 482, Cr.P.C for quashment of Complaint Case No. 2057912006 pending before JMFC, Jabalpur. 2. A complaint filed by respondent/complainant under Section 138 of the Negotiable Instruments Act (hereinafter shall be referred to as 'the Act') against the applicant/accused on the ground that the cheque was returned for the reason that there was insufficient fund as well as the signature differs from the specimen signature on record, thus impugned complaint be quashed. 3. The short facts of the case are that the respondent has filed a complaint case before the bank regarding a cheque of Rs. 57,600/- (bearing cheque No. 073512-482023001) dated 2-5-2006 of Punjab and Sind Bank, Jabalpur. The cheque was returned back by the bank stating that signature does not tally as well as the funds are insufficient. A demand notice for payment of the amount was served on the applicant. After receipt of notice applicant/ accused replied the notice (Annexure P-5), dated 17.5.2006 alleging that the aforesaid cheque was lost from his shop and he never gave the cheque to the respondent. Applicant/accused has specifically mentioned in the reply of notice. (Exh. P-5, dated 17.5.2006) that he has lodged a report regarding loss of cheque at Police Station, Adhartal. 4. Learned counsel for the applicant has submitted that cheque was returned with the notice that the drawers signature differs with the specimen signature on record of applicant as well as for insufficient fund and as such complaint under Section 138 of the Act is not maintainable. 5. The question involved in this petition is that as the disputed cheque was returned on two grounds stating that- (i) The funds are insufficient; and (ii) Drawers signature differs with the specimen signature. Therefore, in such a sitatution complaint filed under Section 138 of the Act is aintainable or not is to be answered in this petition. 6. Learned counsel of respondent Shri Shah submitted that impugned complaint was filed by respondent under Section 420, 467 of IPC along with Section 138 of Negotiable Instruments Act with averment that applicant has deliberately signed differently with the original signature but the JMFC has taken cognizance only under Section 138 of Negotiable Instruments Act, such objection can be decided only after recording of evidence by trial Court. 7. 7. The second question "drawers signature differs with the specimen signature" has been answered by the apex Court in the matter of Vinod Tanna and another v. Zaher Siddiqui and others, 2003 (I) MPLJ 373, in this case drawers signature was incomplete where in the present case the drawers signature differs from the signature on record. Whether drawers signature differs or signature is incomplete, the result is the same that the cheque was dishonoured. It will be further proper to reproduce Section 138 of the Negotiable Instruments Act, which reads as under : "138. Dishonour of cheque for insufficiency, etc. of funds in the account. Whether drawers signature differs or signature is incomplete, the result is the same that the cheque was dishonoured. It will be further proper to reproduce Section 138 of the Negotiable Instruments Act, which reads as under : "138. Dishonour of cheque for insufficiency, etc. of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability is returned by the Bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless -- (a)The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier." A mere perusal of Section 138 makes it clear that the offence consists in dishonouring the cheque on the ground "money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with the bank and it is only in such case that the person shall be deemed to have committed the offence." Admittedly the cheque was returned on one more ground that fund was insufficient but at the same time it is important that the cheque was also returned because the signature did not tally with the specimen signature of applicant. Applicant has taken this objection in reply of respondent's notice (Exh. P-5), dated 17.5.2006. 8. It is not every return of cheque which is made punishable by the provisions of Section 138 of Negotiable Instruments Act. Applicant has taken this objection in reply of respondent's notice (Exh. P-5), dated 17.5.2006. 8. It is not every return of cheque which is made punishable by the provisions of Section 138 of Negotiable Instruments Act. After the said cheque is returned, for the reason it is referred to drawer for some other reason e.g., the signature does not tally then the drawer of the cheque cannot be said to have committed an offence under Section 138 of the Negotiable Instruments Act and this being the legal position the Magistrate was not justified in issuing process for an offence punishable under Section 138 of the Negotiable Instruments Act. 9. The contents of the complaint are sufficiently clear to show that no offence is disclosed and, therefore, the learned Magistrate has wrongly exercised the jurisdiction vested in him by law while issuing the process and taking cognizance of offence against the petitioner/accused is abuse, of process of law. 10. The petition is allowed and the Complaint Case No. 20579/06 pending before the JMFC, Jabalpur is quashed.