SUSHILA AGARWAL Vs. INDIAN OVERSEAS CO. P. LTD.

JUDGEMENT

(1.) THE only ground on which the petitioners seek quashing of criminal proceedings is that the complaint filed by the respondent for alleged commission of offences under Section 138/142 of the Negotiable Instruments Act was not made out. It is contended that the complaint did not confirm to the Proviso (a) to Section 138(1).

(2.) THE complaint was performed before the learned trial court on 20.3.2004 on the ground that the petitioner had issued a cheque on 5.8.2003, drawn on Oriental Bank of Commerce. It was returned unpaid by the drawer's bank of Return Memo dated 5.2.2004. The complainant had alleged that notice was issued to the petitioner but despite its receipt it was not honoured; accordingly were drawn up. The learned trial court had issued process by order dated 23.3.2004 only the allegation about the petitioners having committed the offences under Section 138/142; no orders were issued regarding alleged commission of other offences.

(3.) LEARNED counsel for the complainant urged that the proceedings were maintainable and that the Proviso (a) to Section 138 as well as the expression "bank" has to receive the liberal having regard to the object, i.e. speedy recovery of the amounts. It was contended that on a practical interpretation of the provision the court has to uphold the reasoning that the payee cannot be expected to present his cheque or instruments to the drawer's bank and under these circumstances sending a cheque for collection through his bank would be an acceptable mode. It was also contended that the issues raised are entitled to be taken up in the defence.