PRABHU DAYAL Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The revision is directed against the judgment and order of sentence dated 9-6-2005 passed by Judicial Magistrate, 1st Class, Hazaribagh in Complaint Case No. 27,of 1994, corresponding to T.R. No, 681 of 2005. by which judgment the learned Magistrate found the petitioner guilty under Section 138 of N.I. Act and Section 420 of the Indian Penal Code. The learned Magistrate sentenced appellant for 1 year S.I. under Section 420 of the Indian Penal Code and 1 year S.I, under Section 138 of the N.I Act. He also directed the petitioner to pay Rs. 2 lakhs to the complainant which is the cheque amount. In appeal the learned Additional Sessions Judge. Madan Mohan Singh, Fast Track Court No. VII, Hazaribagh, by which judgment dated 22-8-2006 in Cr. Appeal No. 103/05 found the appellant only under Section 138 of the N. I. Act, and dismissed the appeal. Hence this revision.

(2.) The only point of law raised by the petitioner in this revision application is that since the cheque submitted by the complainant was returned back on the ground that the drawee has instructed to stop payment, since the cheque has been lost and Section 138 of the Negotiable Instruments Act says that only when the cheque is returned stating that the money standing to the credit of the account of the drawer is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with that Bank, and as such only these two condition of Section 138 of the N.I. Act is attracted. He has further argued that the admitted case of the complainant is that the cheque was given as a security and not in discharge or any debt or other liability and in that case also Section 138 of the N.I. Act is not attracted.

(3.) On the other hand, learned counsel for the opposite party No. 2 has submitted that if a cheque has returned by the Bank stating that the drawer issued notice to the Bank for stoppage of payment on any ground then Section 138 of the N.I. Act will be attracted. He relied on a Supreme Court decision for the aforesaid argument.