LAL CHAND Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India read with Section 482 Cr.P.C. takes exception to the procedure adopted by the learned Magistrate whereby the petitioner has been summoned in a complaint filed against him under Section 138 read with Section 142 of the Negotiable Instruments Act (for short the 'Act').

(2.) It is averred that while summoning the petitioner, the learned Magistrate was under legal obligation to follow the procedure as envisaged under Section 200 Cr.P.C. and it was only after examining the complainant and recording the preliminary evidence, that the learned Magistrate could have issued the summoning order that too after satisfying itself that prima facie an offence had been committed by the petitioner.

(3.) At the outset, it needs to be observed that this petition has probably been filed without taking into consideration the amendment brought out in the Negotiable Instruments Act. Chapter XVII comprising of Section 138 to 142 was inserted to inculcate faith in the efficacy of banking operation and credibility in transacting business on negotiable instruments. Despite civil remedy Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a book and induce the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly. It is seen that once the cheque has been drawn and issued to the payee and the payee has presented cheque and thereafter, if any instructions are issued to the bank for non-payment and the cheque is returned to the payee with such an endorsement, it amount to dishonor of cheque and it comes within the meaning of Section 138.