RAMSWAROOP TYAGI Vs. OMKARNATH PANDEY

JUDGEMENT

(1.) The applicant / drawer has invoked the jurisdiction of this Court under Section 482 Cr.P.C. to assail the order dated 18.12.2010 whereby the court below has rejected the application of the applicant preferred under Section 245 of Cr.P.C and decided to proceed with the matter on merits. The question needs consideration is whether court below is justified in rejecting the said application and proceeding with the matter on merits and whether any interference at this stage is warranted by this Court?

(2.) The said question emerges on the following factual backdrop. The non-applicant / complainant filed a complaint under Section 138 of N.I. Act. contending that the present applicant took a loan of Rs. 3,00,000/- in April, 2008 from the non-applicant with the promise that same would be refunded within a year. A receipt to that effect was also executed. When the said loan amount was not repaid up to one year, request was made by the non-applicant to the applicant and ultimately a cheque No. 82978 dated 13.05.2009 of Rs. 3,00,000/- was given by the applicant to the non-applicant / complainant. The said cheque was deposited by the complainant at State Bank of India , Morena on 25.05.2009. However, the said cheque was returned back with an endorsement that applicant has asked for "stop payment".

(3.) Shri A.V. Bhardwaj, learned counsel for the applicant submits that as applicant's cheque book was not traceable, he immediately informed this fact to the Police and Bank authorities. He requested that if any such cheque from the said cheque book is deposited, no payment be made. Accordingly, the said bank vide Annexure P/8 stopped the payment on the instructions of applicant. To elaborate, Shri Bhardwaj contended that Section 138 of NI Act is a penal provision. Being a penal provision, it must receive strict construction. Section 138 can be invoked when (i) amount of money standing to the credit of that account is insufficient to honour the cheque or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank. By placing reliance on (Rajkumar Khurana Vs. State of (NCT of Delhi and Anr, 2009 CrLJ 3454), it is contended that parameters for invoking the provisions of Section 138 of NI Act being limited, the refusal on the part of the Bank to honour the cheque would not bring the matter within the mischief of provisions of Section 138 of the Act.