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Uttarakhand High Court · body

2010 DIGILAW 239 (UTT)

S. C. MATHUR v. STATE OF UTTARANCHAL

2010-04-27

PRAFULLA C.PANT

body2010
JUDGMENT By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), the petitioner has sought quashing of the proceedings of Criminal Complaint Case No. 1095 of 2004; Deepak Sharma Vs. S.C. Mathur and another, relating to offence punishable under Section 138 of the Negotiable Instruments Act, 1881, pending in the court of Judicial Magistrate First, Dehradun. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that the respondent No. 2/complainant filed Criminal Complaint Case No. 581 of 2001 (new No. 1095 of 2004) before the Chief Judicial Magistrate, Dehradun alleging that he had given loan to the petitioner S.C. Mathur amounting to Rs. 1,50,000/- in December 2000. In repayment thereof, the petitioner gave cheque No. 770111 dated 15.01.2001, drawn on Punjab National Bank, Branch Wellham Girls High School Extension Counter, E.C. Road, Dehradun. When said cheque was presented by the complainant (respondent No. 2) in said Bank it got dishonoured with the endorsement ‘Account Number Required’. The complainant has pleaded that he served a notice on the petitioner in February 2001, and again presented the cheque, but the same was again got dishonoured on the same ground. Thereafter, a notice dated 20th February 2001, was given to the petitioner and when no payment was made within fifteen days, the criminal complaint in question was filed before the Chief Judicial Magistrate, Dehradun (since transferred to the court of Judicial Magistrate First, Dehradun). On said complaint, the petitioner was summoned in respect of offence punishable under Section 138 of the Negotiable Instruments Act, 1881, vide impugned order dated 06.11.2001, passed by the Chief Judicial Magistrate, and order dated 09.12.2004, passed by the Judicial Magistrate First, Dehradun. 4. Learned counsel for the petitioner argued that assuming for a moment that the allegations made in the criminal complaint (copy of which is Annexure-4 to the petition) are correct, even then the ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, are not made out. In this connection, attention of this Court is drawn on behalf of the petitioner to the expression ‘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’. In this connection, attention of this Court is drawn on behalf of the petitioner to the expression ‘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’. It is argued that the account number is not mentioned in the cheque cannot be the ground to prosecute the person issuing cheque, in respect of offence punishable under Section 138 of Negotiable Instruments Act. Also, reliance is placed to the case of Raj Kumar Khurana Vs. State (NCT of Delhi) and another (2009) 2 Supreme Court Cases (Cri) 936, in which cheque was dishonoured not on the ground of insufficiency of fund, but on account of fact other than said reason. The Apex court in the circumstances held that if the cheque is not dishonoured on the ground of insufficiency of funds, it cannot be said that the ingredients of offence punishable under Section 138 of Negotiable Instruments Act, 1881, are made out. 5. In the present case, since admittedly, cheque was dishonoured on the ground that it did not bear the account number, that is no ground to attract the provision of Section 138 of Negotiable Instruments Act, 1881. Therefore, this petition deserved to be allowed. 6. For the reasons as discussed above, the petition under Section 482 of Cr.P.C. is allowed. The proceedings of Criminal Complaint Case No. 1095 of 2004; Deepak Sharma Vs. S.C. Mathur and another, relating to offence punishable under Section 138 of Negotiable Instruments Act, 1881, pending in the court of Judicial Magistrate First, Dehradun, are hereby quashed.