JAPAHARI Vs. PRIYA

JUDGEMENT

(1.) A complaint was filed in the lower court by petitioner's wife alleging that her husband has committed the offence under S.138 of the Negotiable Instruments Act, 1881 (for short 'the Act') in respect of a cheque bearing the date 28-8-1992. The cheque is for Rs.1,50,000/-. The magistrate before whom the complaint was filed took cognizance of the offence and issued process to the petitioner. Now the petitioner wants to have the complaint quashed under S.482 of the Code of Criminal Procedure (for short 'the Code').

(2.) The complaint shows that a post dated cheque was issued by the petitioner towards some liability or debt due to the complainant. Complainant alleges that petitioner had closed his account with the drawee bank before the cheque was presented and hence it was returned unpaid for that reason. Petitioner's main contention is that there is no offence under S.138 of the Act when there was no account in the drawee bank at the time the cheque was presented for encashment. According to the learned counsel, account of the drawer must be alive with the drawee bank at the time of presentation of the cheque and only if the cheque is returned unpaid because of insufficiency of money standing to the credit of the drawer (or if it exceeds the limit arranged to be paid) that an offence under S.138 of the Act can be founded.

(3.) For considering the aforesaid contention, I will take it for granted that the cheque in question was a post dated one and that the drawer closed the account before the cheque became due for encashment.