SAHJAD AHMAD Vs. STATE OF UTTARAKHAND AND ANR.

JUDGEMENT

(1.) BY way of this criminal application, the prayer has been advanced to quash the entire proceedings of criminal complaint case No. 194 of 2007, Brijesh Virmani v. Sahjad Ahmad, pending in the court of IInd Special Judicial Magistrate, Dehradun as well as the order of cognizance dated 1.8.2003 passed therein.

(2.) IT is pertinent to mention that this Court has given hearing to the leaned counsel for the applicant, while none turns up on behalf of opposite party No. 2, despite of sufficient service.

(3.) LEARNED Counsel of the applicant has argued that the provision of Section 138 of the Act can be invoked only when the cheque is returned to the Drawee for the reason of insufficiency of fund. He also argued that the Hon'ble Apex Court has also enhanced the scope of this offence for two reasons more, and those are, closure of account by the Drawer after issuing the cheque or if he issues the instructions to the bank for stopping of payment of the cheque. The cause wherefore the cheque returned to the Drawee, is not covered in either of the above grounds, as it was simply not honoured with the remark "referred to drawer". Learned Counsel also relied upon a precedent of the Hon'ble Apex Court in the case of "Jugesh Sehgal v. Shamsher Singh Negi reported in, (2010) 2 SCC (Cri) 218", wherein it was held that all the ingredients under Section 138 of the Act, which are required to constitute the offences, are of cumulative nature and effect. Being so, all ingredients need to be satisfied before a person who had drawn the cheque, can be deemed to have committed the offence Under Section 138 of the Act.