YAKUB KHAN Vs. ROOP SINGH THAKUR

JUDGEMENT

(1.) HEARD . In this petition filed under section 482 of the Criminal Procedure Code, the petitioner has assailed the validity of the order dated 6 -9 -2008 passed by the trial Court by which the trial Court has directed registration of an offence under section 138 of the Negotiable Instruments Act, 1881 (in short 'the Act') against the petitioner.

(2.) FACTS giving rise to filing of this petition, briefly stated are that on 1 -7 -2006, the petitioner borrowed a sum of Rs. 30,000/ - from the respondent and it was agreed that the aforesaid amount shall be paid back to the respondent upto 31 -3 -2007. With a view to secure the amount in question, the petitioner submitted an undated cheque, duly signed by him, bearing No. 983088 drawn on State Bank of India, Gotegaon in the name of the respondent and the aforesaid transaction was evidenced by execution of a document Annexure P/3 dated 4 -7 -2006. It appears that the respondent presented the cheque on 5 -5 -2008, which was returned with an endorsement that the account of the petitioner has been closed. Thereupon, the respondent issued a notice to the petitioner and filed a complaint under section 138 of the Act. The Magistrate, by order dated 6 -9 -2008 directed registration of the offence under section 138 of the Act against the petitioner. In the aforesaid factual background, the petitioner has approached this Court.

(3.) I have considered the submissions made by learned counsel for the petitioner and have perused the record. From perusal of the document Annexure P/3, it is evident that the cheque in question was handed -over by the petitioner to the respondent as a security for loan and was not issued by way of any amount due to the respondent. Therefore, for the reasons assigned by the Supreme Court in the case of M.S. Narayana Menon alias Mani v. State of Kerala and another, : 2006(4) MPLJ (S.C.) 97, the same does not fall within the purview of section 138 of the Act. However, the Magistrate while passing the impugned order has failed to take into account the aforesaid aspect of the matter. Accordingly, the proceeding initiated against the petitioner for an offence under section 138 of the Act in Criminal Case No. 1860/08 vide impugned order dated 6 -9 -2008 passed by the trial Court, Narsingpur, is hereby quashed. In the result, the petition is allowed.