KRUSHNA GOPAL SONI Vs. ARJUNLAL

JUDGEMENT

(1.) By this petition under Section 482 of the CrPC the accused applicant Krishna Gopal has challenged the order dated 28.10.2010 passed by the Judicial Magistrate, Class-I, Ratlam in Criminal Case No.2190 of 2007 dismissing the application for discharge filed by the accused.

(2.) Brief facts necessary for elucidation are that a complaint was filed the accused petitioner for offence under Section 138 of the Negotiable Instruments Act and pending before the Judicial Magistrate, Class-I Ratlam. The complaint had stated that the accused had issued cheque No. 1308956 dated 29.12.2004 for a sum of Rs.20,000 which was returned by the Oriental Bank Commerce, Branch Ratlam with the remark that insufficiency of funds and the signature of the drawer did not match. Counsel for the petitioner has vehemently stressed the fact that when the cheque was dishonored for two grounds that the funds were insufficient and the drawer's signature differed from the specimen signature; then in such circumstances as prayed by the applicant, he cannot be said to have committed an offence under Section 138 of the Negotiable Instruments Act and the learned Judge of the lower Court had erred in taking cognizance of the offence and issuing process. Counsel stated that by the impugned order itself the learned Judge was satisfied with the authority cited by this petitioner in the matter of Rajkumar Shukla v. Sobodh Agrahari,2010 1 NIJ 375 and Vinod Thanna andAnr. v. Zahar Siddiqui and Ors., 2003 1 MPLJ 373. where by this Court as well as the Apex Court had held that under the circumstances of the offence under Section 138 of the Act cannot be made out.

(3.) Coupsel for the respondent, on the other hand, has relied catina of the cases. Counsel placed reliancc on S. Devan, Cine Artist, No. N. v. C. Krishna Menon "Sowpamkia" & Ors., 2010 1 MPLJ 179. Lily Hire Purchase Pvt. Ltd. v. Darshan Lal KM. Krishnan @ Ponnuvel v. R. Subbarayan,2010 1 NIJ 188. Santosh Kumar & Anr. v. Smt. Sirvaiya, 2005 2 MPHT 343. Yogendra Kumar v. Ram Prakash Agrawal,2007 2 NIJ 344. Dipendra G. Choksi Patel v. Dipak Chimnlal Patel,2010 2 NIJ 69. Chhail Das v. State of Haryana, 1975 CrLJ 129. & Municipal Corporation of Delhi v. Raln Kishan Rohtagi & Ors., 1983 CrLJ 159 to state that even if the signature in the cheque is proved to be not genuine, the culpability under Section 138 of the Act has to be decided by the Court by deciding whether the signature is genuine and the execution is proved or not. Counsel urged that merely because the banker had returned the cheque for the reason that the signature differs, was no reason for the Court to mechanically swallow that reason. Counsel vehemently urged that the Courts were obliged to be concerned whether the real reason for dishonor is insufficiency of fund or not. Counsel for the respondent has also relied on several cases to indicate that the presumption under Section 139 of the Negotiable Instruments Act must follow and the drawer of the cheque can be held responsible under Section 138 of the Act. She also depended on the same case as in the matter of Rajkumar Shukla (supra) to state that under identical circumstances the loss of cheque was alleged by the accused and the same fact was mentioned in the reply to the notice and he had reported a loss of cheque to the police station Adhartal; such is not the condition in the present case. Moreover, she also stated in the matter of Vinod Thanna v. Zahar Siddiqui and Ors., (supra) the matter pertain to incomplete signatures and could not compared with the present case where the banks has stated that signatures were different. She stated that it is a matter to be proved by handwriting expert and the case cannot be prematurely dismissed. She played that petition was without merit and had been filed at premature stage and prayed for dismissal of the same.