BABULAL NAINMAL JAIN Vs. KHIMJI RATANJSHI DEDHIA

JUDGEMENT

(1.) THIS is a petition under Article 227 of Constitution of India challenging the order passed by the learned Additional Chief Metropolitan Magistrate, 2nd Court at Mazgaon in Criminal Case No.59/w/1989 issuing process against the Petitioner for the offence under Section 138 of Negotiable Instruments Act.

(2.) IN the complaint before the learned Metropolitan Magistrate, 2nd Court, Mazgaon, the grievance of the complainant Society through Khimji Ratanshi Dedhia was to the effect that the accused had placed an order for 5 rice bags through the broker on 15-4-1989 and goods were delivered vide Bill No.7619 amounting to Rs. 2989-60. The accused issued a cheque bearing No.116097 dated 3-6-1989 for an amount of Rs. 2989-60 ps drawn on Dombivali Nagri Sahakari bank Limited, Dombivali. This cheque was not computrised cheque (MICR cheque) therefore the complainant Society sent a registered letter on 14-6-1989 calling upon the accused that the said cheque was not accepted by their bank. However, the accused having come to know of the fact from the said letter, failed and neglected to replace the cheque nor he replied the letter. Thereafter the cheque was presented to the Dena bank and the complainant society asked the said Bank to give any endorsement on the cheque and the bank thereafter sent the cheque for clearance to Dombivali Nagri Sahakari Bank Ltd. Dombivali. The Bank informed by letter dated 21-7-1989 that the cheque was presented but returned with remarks "referred to drawer". It is on the basis of this complaint that the learned Magistrate has issued process against the present Respondent and other 2 persons as well as Respondent no. 1 (firm) of which the other accused are absent.

(3.) IT is not every return of cheque which is made punishable by the provisions of Section 138 of Negotiable Instruments Act. After a said cheque is returned, for the reason that it is referred to drawer for some other reason e. g. the signature does not tally or it is not MICR cheque then the drawer of the cheque cannot be said to have committed an offence under Section 138 of the Negotiable Instruments Act and this being the legal position the learned Magistrate was not justified in issuing process for an offence punishable under Section 138 of the Negotiable Instruments Act.