VIJAY CHAUDHARY Vs. GYAN CHAND JAIN

JUDGEMENT

(1.) THIS petition u/s 482 of the Cr. P. C (for short 'the Code') has been preferred for quashing the proceedings initiated u/s 138 of the Negotiable instruments Act titled "gyan Chanel Jain v. Vijay Chaudhary", earlier pending in the Court of Ms. Navita Kumari Bagha and now pending in the court of Mr. Sudesh Kumar, M. M. Patiala House, New Delhi.

(2.) THE case of the complainant/respondent in his aforesaid complaint is that on 8/8/2004 (which according to the counsel for the respondent should be read as 6/8/2004), the accused/petitioner visited the shop of the complainant and took some diamonds and diamond studded jewellery worth rs. 1,52,35,000. 00 on consignment/ sale basis and in lieu thereof, the accused/petitioner issued a cheque bearing No. 061630 for a sum of Rs. 1,52,35,000. 00 drawn on Federal Bank, Overseas Branch, New Delhi dated 10/4/2006. It is further alleged that the complainant presented the said cheque through its banker for collection and the same has been returned unpaid with the remarks "funds insufficient" and "payment stopped by attachment order/court order".

(3.) THE submission of the petitioner is that even according to the complainant, the said cheque was a post dated one, which was presentable for encashment after nearly one year and eight months from the date of its alleged issue. Ke submits that in the meantime, the operation of the account on which the cheque was allegedly issued was stopped on account of an attachment order/court order in relation to FIR No. 283/2005 u/s 406/420/467/468/471/120-B IPC registered against the petitioner with P. S connaught Place. On account of the said attachment order, it was not possible for the petitioner to operate the said account either to deposit any amount in the account, or to withdraw any amount therefrom. For an offence to be made out u/s 138 of the Negotiable Instruments Act, the account must be "maintained" by the drawer with his banker for payment of the amount for which the cheque is drawn. He submits that on the date of the dishonour, it could not be said that the account was maintained by the petitioner and, therefore, there was no question of the offence u/s 138 of the Negotiable instruments Act having been committed by the petitioner.