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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
S.S. Dani, J.
Omprakash s/o. Bhojraj Maniyar.... Petitioners.
Versus
Smt. Swati Girish Bhinde and others .... Respondents.
Cri.R.A. Nos. 243, 244, 245 and 246 of 1991, decided on 10-1-1992.
Advocates appeared :
K.G. Navandar, for petitioners.
P.R. Patil, for respondents 1 and 2.
S.B. Bhapkar, A.P.P. , for State.
The plain reading of Section 138 of the Negotiable Instruments Act makes it clear that the words "either because of the amount standing to the credit of that account is insufficient or that it exceeds the amount have been specifically used. It would, therefore, mean that only two contingencies are contemplated and as such, the words either or" have been used. It is therefore, clear that the cheque should be dishonoured either for the insufficiency of the amount or, because it exceeds the amount arranged to be pain from that account. No third contingency or eventuality has been contemplated "and the specific clear wording of Section 138 eliminates any third contingency that mentioned in the section itself. It need not be stated that the cheque can be dishonoured for so many reasons and there may be so many eventualities in which the payee is denied payment by the bank. For example, mentioning the date incorrectly or some corrections not initiated or the difference in between the amount mentioned in figures and words are certain other contingencies in which the cheque will be definitely dishonoured and would be returned as unpaid. It is not in respect of any of these contingencies that the dishonour of a cheque has been mane penal under Section 138 of the Act. The submission on behalf of the petitioners to the effect that the dishonour as in the present case because of the closure of the account should also be held as penal, cannot, therefore, be accepted.
2. Criminal Revision application No. 243 of 1991 is filed against the order dated 5-1-1991 passed by Additional Sessions Judge, Amalner in Criminal Revision application No. 59 of 1990 quashing the issuance of process under section 138 of the Negotiable Instruments Act against the present respondents Nos. 1 and 2. Criminal Revision Application No. 224 is also directed against the order dated 5-1-1991 passed by the same Court in Criminal Revision Application No. 57 of 1990 quashing the similar issuance of process. In these two criminal revision applications present petitioner Omprakash is the original complainant, while the present respondents Nos. 1 and 2 are the original accused persons.
3. Criminal Revision Application No. 245 of 1991 is directed against the order dated 5-1-1991 passed by the same Court in Criminal Revision Application No. 58 of 1990, while the remaining Criminal Revision Application No. 246 of 1991 is against the order of the same Court of the same date in Criminal Revision Application No. 56 of 1990. In Criminal Revision Application Nos. 245 of 1991 and 246 of 1991, the petitioner is the original complainant while the respondents No. 1 and 2 are the original accused persons. In all these proceedings, both accused are the same. The accused have taken a hand loan from their respective complainant and had issued four different cheques of different amounts for the repayment of the said loan amounts. In all these cases, cheques were presented to the concerned bank; they were returned as unpaid with endorsement that account was closed by the drawer. The original complainant Omprakash Bhojraj, therefore, filed two Criminal Cases bearing Nos. 153 of 1989 and 154 of 1989 alleging the offences punishable under section 420 read with section 34, Indian Penal Code and section 138 of the Negotiable instruments Act. Similarly, the other complainant Pramod Bhojraj also filed Criminal Cases No. 151 of 1989 and 153 of 1989 in respect of the dishonoured cheques alleging the similar offences against the accused.
4. In all these four criminal cases the trial Magistrate ordered the issuance of process both under sections 420 read with section 34, I.P.C. and section 138 of Negotiable Instruments Act. These accused then took up the matters in four criminal revision applications before the Sessions Court at Amalner. All the four criminal revision applications came to be allowed by an order dated 5-1-1991 and the Sessions Court partly allowed the revisions and quashed the issuance of process under section 138 of the Negotiable Instruments Act, but maintained the issuance of process only under section 420 read with section 34, Indian Penal Code against these accused.
5. Feeling aggrieved by the order of Sessions Court in respect of the setting aside the issuance of process under section 138 of the Negotiable Instruments Act, the original complaints have filed these four revision applications to this Court. Inasmuch as, all these revision applications involve common questions of law and facts, and, as the original matters have been decided by a single similar order, all these four revision applications are being heard and decided simultaneously by this common judgment.
6. The only short point involved in all these proceedings is whether the complainants proved a case against these accused for issuance of process under section 138 of the Negotiable Instruments Act. Before coming to the rival contentions, it be noted that, admittedly, the accused persons have issued four different cheques with respect to the four hand loan transactions and all these cheques have been admittedly returned by the bank as unpaid on the ground that the accounts were closed by the drawers i.e. these accused.
7. Section 138 of the Negotiable Instruments Act, which has been recently introdu
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