V A NOORI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is the accused No. 3 in C.CNo. 2125 of 1998 on the file of XXIII Metropolitan Magistrate Court at Nampally, Hyderabad charged for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act").

(2.) In this writ petition, the petitioner has sought for Writ of Mandamusdirecting the respondents not to implement Section 138 of the Act and to declare Section 138 of the Act as null and void.

(3.) Although several contentions are raised in the affidavit filed in supportof the writ petition, the learned Counsel for the petitioner did not press those / contentions into service, obviously realising the futility of those contentions for assailing the constitutional validity of Section 138 of the Act. The only contention of the learned Counsel is that Section 6 of the Act defines the term "Cheque" to mean a bill of exchange drawn on a specified banker and not expressed to be payable otherwise on demand, and therefore, when a Cheque is not paid on demand, it cannot be said that there is a dishonour of cheque to bring under the mischief of Section 138 of the Act. This contention is totally misconceived and untenable. Sections 5, 6 and 19 read conjointly together, make it clear that the holder of a Cheque has a legal right to payment of the money on demand. If the banker dishonours the Cheque under the circumstances envisaged under Section 138 of the Act, it cannot be said that the instrument of Cheque loses its character and it becomes a bill of exchange not payable on demand. The character of a Cheque does not change even after its dishonour by the banker. Therefore, there is no merit in the contention of the learned Counsel for the petitioner that the dishonour of the cheque issued by him by his banker does not come under the mischief of Section 138 of the Act.